Kandel (Migration)

[2023] AATA 3997

Kandel (Migration) [2023] AATA 3997 (17 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Himani Kandel
Mrs Shiba Kala Sapkota Kandel
Mr Tek Nath Kandel

REPRESENTATIVE:  Dr Geety Nabi (MARN: 1800424)

CASE NUMBER:  2314819

HOME AFFAIRS REFERENCE(S):          BCC2022/5519947

MEMBER:Mark Bishop

DATE:17 November 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 17 November 2023 at 2:36pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – application for review made more than 21 days after notification of visa refusal decision – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 347(1)(b), 494C
Migration Regulations 1994 (Cth), 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 Home Affairs on 22 August 2023 to refuse to grant Medical Treatment (Visitor) (Class UB) visas under s 65 of the Migration Act 1958 (Cth) (the Act). The review application was lodged with the Tribunal on 19 September 2023. 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 reg 4.10 of the Migration Regulations 1994 (Cth) (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 22 August 2023 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 18 October 2023 the Tribunal wrote to the applicant in the following terms:

   I am writing in relation to the applications for review made by you in respect of
   decisions to refuse to grant Medical Treatment (Visitor) (Class UB) visas.

   I am of the view that your applications are not valid applications as they were not
   lodged within the relevant time limit. The primary decisions were emailed to: you on
   22 August 2023 and, on the basis that 22 August 2023 was the date on which you are
   taken to have been notified, the last day for lodging the applications for review was 12
   September 2023. As the applications were not received until 19 September 2023, it
   appears to be out of time. However, this is a matter which must be determined by a
   Member.

   If you wish to make any comments on whether a valid application has been made, you
   are invited to do so, in writing, by 1 November 2023. Your application, with any
   comments you make, will then be referred to a Member to make a decision on your
   application. If the Member decides that you have not made a valid application, you will
   be given a written statement of decision and reasons
   .
   We acknowledge your request to withdraw your application for review.

   A withdrawal can only be made once a valid application for review has been lodged.
   As your application is currently being assessed for validity, it is not possible to
   withdraw your application at this time. If the Member decides that you have not made
   a valid application, your case will be finalised on the basis that we do not have
   jurisdiction to conduct the review. If your application is found to be valid we will
   process the withdrawal and notify you. Please note that applications that are withdrawn are only entitled to a refund in limited circumstances.

5. In response the applicant requested a refund of fees previously paid.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 22 August 2023: s 494C of the Act. Therefore the prescribed period to apply for review ended on 12 September 2023.

7. As the application for review was not received by the Tribunal until 19 September 2023 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

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

   Mark Bishop
   Senior Member