Khan (Migration)

[2022] AATA 1845

Khan (Migration) [2022] AATA 1845 (29 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Sameena Khan
Mr Syed Shareefuddin Khan
Ms Umaiza Shareef
Ms Amrah Shareef

CASE NUMBER:  2119091

HOME AFFAIRS REFERENCE(S):          BCC2020/30151

MEMBER:Penelope Hunter

DATE:29 March 2022

PLACE OF DECISION:  Sydney

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

Statement made on 29 March 2022 at 10:53am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – review application was lodged out of time – no jurisdiction

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 Home Affairs on 19 November 2021 to refuse to grant Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act). The review application was lodged with the Tribunal on 13 December 2021. 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 19 November 2021 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 15 December 2021, the Tribunal wrote to the visa applicants noting the relevant time limit for filing an application for review and invited comment as to whether a valid application for review had been made.

5. On 29 December 2021, the first named applicant provided a response to the Tribunal via email and claimed that by the time that she had accessed the Department email notifying her of the decision 21 days had already passed and she immediately applied to the Tribunal. The first named applicant also set out some information regarding the perceived merits of her application.

6. In her letter of submission the first named applicant does not contest the operation of s 347(1)(b) of the Act or reg 4.10 of the Regulations. She does not dispute that the Departmental notice of the decision was sent to her on 19 November 2021, and neither does she dispute that the Tribunal was correct in calculating the last day for lodging the application for review. In her email the first named applicant acknowledges that the 21 days had passed before she filed the review application.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 19 November 2021: s 494C of the Act. Therefore the prescribed period to apply for review ended on 10 December 2021.

8. The Tribunal has considered the submission of the first named applicant regarding the reasons she was unable to lodge the application for review within time. However, there is no provision that would enable the Tribunal to extend the time for lodgement for the reasons she has claimed. The relevant legislation does not permit this discretion. 

9. As the application for review was not received by the Tribunal until 13 December 2021 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

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

    Penelope Hunter
    Member