Kusmi (Migration)

[2024] AATA 4058

Kusmi (Migration) [2024] AATA 4058 (4 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Monika Kusmi

REPRESENTATIVE:  Mr Biwek Thapa (MARN: 0747526)

CASE NUMBER:  2421822

HOME AFFAIRS REFERENCE(S):          PNJ

MEMBER:Richard Guemy

DATE:4 October 2024

PLACE OF DECISION:  Sydney

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

Statement made on 04 October 2024 at 3:33pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 500 (Student) – review application out of time – statutory requirements for notification – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 66, 347, 494C
Migration Regulations 1994, r 4.10

CASES

Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434

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 12 June 2024 to refuse to grant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The review application was lodged with the Tribunal on 8 July 2024. 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. This period in which to make a review application is prescribed by law and cannot be extended by the Tribunal.

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 12 June 2024 and dispatched by email to her authorised recipient. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 19 August 2024, the Tribunal wrote to the applicant inviting her to comment on the validity of her review application. The Tribunal indicated in the invitation that it appeared that his review application appeared to have been lodged out of time.

5. On 29 August 2024, the applicant’s migration agent emailed the Tribunal and provided written submissions in response to the Tribunal’s invitation. The migration agent submitted that the Department’s notification letter did not meet the requirements of s 66(2)(d)(ii) because it:

   i.wrongly stated that it was sent to the applicant by email when it was sent by email to the applicant’s authorised recipient;

   ii.did not identify the date on which the applicant was taken to have received the letter by reason of the operation of s 494D of the Act; and

   iii.relatedly, wrongly stated that time started to run from the end of the day it was transmitted to the applicant, as opposed to when it was transmitted to her authorised recipient.

6. The applicant’s migration agent indicated that in similar matters (case numbers 2306641 and 2315938), the Tribunal accepted that the notification failed to properly state the time in which the application for review may be made, accepted the review application which was otherwise lodged outside the prescribed period, and proceeded to a decision on the review.

7. The Tribunal has considered the applicant’s migration agent’s submissions but finds firstly that the Department’s notification letter at page 2 indicates that the applicant appointed an authorised recipient and that she is taken to have received the letter at the end of the day it was transmitted to her authorised recipient; secondly that there is no legal requirement to identify the date on which the applicant was taken to have received the letter by reason of the operation of s 494D of the Act but rather to state the time in which the application for review may be made, which the notification letter does; and thirdly that the notification letter indicated that an application for merits review must be given to the Tribunal with 21 calendar days after the day on which the applicant is taken to have received the letter and that because she appointed an authorised recipient the applicant was taken to have received the notification letter at the end of the day it was transmitted to her authorised recipient.

8. The Tribunal further finds that the notification letters that were the subject of Tribunal case numbers 2306641 and 2315938 did not indicate that the applicants had appointed an authorised recipient and were taken to have received the notification letter at the end of the day it was transmitted to their authorised recipient. As such, the Tribunal finds that the current matter is factually distinguishable from the matters the applicant’s agent has identified.

9. In light of the findings above, the Tribunal finds that the notification letter clearly states the time in which the application for review may be made and is otherwise not affected by the judgment in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434.

10. The Tribunal finds that the applicant is taken to have been notified of the decision on 12 June 2024: s 494C(5) and s 494D(2) of the Act of the Act. Therefore, the prescribed period to apply for review ended on 3 July 2024.

11. As the application for review was not received by the Tribunal until 8 July 2024 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

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

    R Guemy
    Member