Kiridaran (Migration)

[2019] AATA 2303

Kiridaran (Migration) [2019] AATA 2303 (18 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Senchuthaan Kiridaran

CASE NUMBER:  1905229

DIBP REFERENCE(S):  BCC2018/5439195

MEMBER:David Barker

DATE:18 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 18 April 2019 at 7:46am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – application  not valid  – application lodged out of time – tribunal has no discretion – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 347(1)(b), 494C
Migration Regulations 1994, Schedule 2, 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 31 January 2019 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 6 March 2019. 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 31 January 2019 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The Tribunal wrote to the applicant on 20 March 2019 and invited comment from him in relation to a preliminary view that the application was not valid given it had not been lodged in the 21 days after the notification of the primary decision. The letter explained to the applicant that the primary decision was emailed to him on 31 January 2019 and, on the basis that 31 January 2019 was the date on which he is taken to have received notice of the decision, the last day for lodging the application was 21 February 2019.  It was stated that as the review application was not received until 6 March 2019 the application appeared out of time.  The letter indicated the Tribunal required a response, in writing, by 3 April 2019. 

5. On 1 April 2019, the Tribunal received an email from the applicant, requesting further time to respond to the natural justice letter sent to him by the tribunal on 20 March 2019. The Tribunal consented to this request.

6. On 15 April 2019, the Tribunal received an email from the applicant, which stated:

   Cause for Delayed Appeal

   The appeal should have been made within the time frame period of 31^st January 2019 to 21^st February 2019.  Below are the reasons why I was unable to accomplish the task:

   ·I was in Sri-Lanka from 21^st January 2019 to 28^th February 2019.

   ·My agent informed me that she received a letter from Department of Home Affairs regarding my appeal.  They requested me to send a signed letter so that they can appeal on my behalf.

   ·I came back on 28^th February 2019 and went to see my agent the next day regarding my appeal. However, they informed me that since they were occupied with many clients they were not able to submit my appeal in a timely manner.

   Even though the appeal period was over, I have still appealed hoping it would be taken into consideration, as this was an unintended mistake.

   It would be much appreciated if my appeal is taken into serious consideration as this decision would affect my life and all the hard work put in so far.

7. The Tribunal has considered the submissions from the applicant as to whether it is possible to consider his out of time application for a review of the Department’s decision to refuse his application for the Student (Temporary) (Class TU)(Subclass 500) visa. Unfortunately, the Tribunal has no discretion in relation to the application of the statutory time frames that are relevant to his case.

8. The Tribunal finds that the applicant is taken to have been notified of the decision on 31 January 2019 in accordance with s.494C of the Act. Therefore the prescribed period to apply for review ended on 21 February 2019.

9. As the application for review was not received by the Tribunal until 6 March 2019 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.

    David Barker
    Member