HUI (Migration)

[2018] AATA 276

HUI (Migration) [2018] AATA 276 (15 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pan Hui

CASE NUMBER:  1801385

DIBP REFERENCE(S):  CLF2015/67191

MEMBER:David Barker

DATE:15 February 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 15 February 2018 at 11:19am

CATCHWORDS

Migration – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – Applicant’s notified of the decision via letter – Application withdrawn – Prescribed period for review ended

LEGISLATION
Migration Act 1958, ss 65, 347, 494C

Migration Regulations 1994, r 4.10

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 21 March 2016 to refuse to grant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 19 January 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 (the Regulations) an application for review of this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 21 March 2016 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The applicant lodged an initial application with the Tribunal for a review of the delegate’s decision on 7 April 2016.  On 20 March 2017 the Tribunal received a Withdrawal of application for migration or refugee review form, signed by the applicant and dated 20 March 2017.  This request was consented to by the Tribunal, with the application for a withdrawal of the applicant’s review being finalised on 23 March 2017.

5. On 31 January  2018 the Tribunal wrote to the applicant inviting him to comment  on the view the application for a review of the delegate’s decision, received by the Tribunal on 19 January 2018 is not a valid application, as it has been made outside of the statutory period in which a valid review application can be lodged.

6. On 12 February 2018, the Tribunal received an email from the applicant, which stated:

   I am writing to you about you letter dated on 31 January 2018 to invite me to comment about my AAT review application. I would like to put my explanations as follow:

   ·My previous agent dealt with my appeal application for my student visa. However, I made a wrong decision and I withdrew the appeal application with the mislead of the agent. As a result, my appeal cannot be conducted. After consulting from other agent, I started to realize that I brought myself a big trouble because of this wrong decision. I withdrew the appeal application under mislead and I suffered a great loss.

   ·In addition, I have not received any confirmation of appeal withdrawal from the

   Tribunal and I did not realize that I have already overstayed my visa. I knew the truth after consulting

   ·I hope AAT can investigate and accept my appeal application, because I am also a victim in this case.

7. The Tribunal accepts the claim from the applicant that he made a decision, albeit one he now regrets, to withdraw the application for a review of the delegate’s decision which he had previously lodged with the Tribunal on 7 April 2016. The Tribunal has considered the applicant’s claim he did not receive any confirmation his appeal had been withdrawn. The Tribunal has reviewed information previously provided by the applicant and notes on 28 February 2017 the Tribunal received an Appointment of Representative Form, signed by him and dated 28 February 2017, which appointed a registered migration agent to act as his representative and to receive all correspondence from the Tribunal on his behalf.  The Tribunal has confirmed no notification was received from the applicant withdrawing the authority for this registered migration agent to act on the applicant’s behalf and to receive correspondence from the Tribunal prior to the notice being sent to the registered migration agent regarding the finalisation of the withdrawal of application on 23 March 2017.

8. The Tribunal acknowledges the applicant regrets withdrawing his previous review application.  However the issue now before the Tribunal is to determine whether the review application lodged with the Tribunal on 19 January 2018 is a valid application which the Tribunal has jurisdiction to undertake.

9. The Tribunal finds that the applicant is taken to have been notified of the decision on 21 March 2016 in accordance with s.494C of the Act. Therefore the prescribed period to apply for review ended on 11 April 2016.

10. As the application for review was not received by the Tribunal until 19 January 2018 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

    DECISION

11. The Tribunal does not have jurisdiction in this matter.

    David Barker
    Member