LI (Migration)

[2024] AATA 3919

LI (Migration) [2024] AATA 3919 (1 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Wei-Jie LI

REPRESENTATIVE:  Mr Stanley Chan (MARN: 0430097)

CASE NUMBER:  2412940

HOME AFFAIRS REFERENCE(S):          BCC2023/6950685

MEMBER:Mary Sheargold

DATE:1 October 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 01 October 2024 at 3:03pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – application for review made one day after specified time – not informed by previous agent until that day – 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 29 April 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 21 May 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.

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 29 April 2024 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 June 2024, the Tribunal wrote to the applicant outlining its preliminary view that her application appeared to have been made out of time, stating that the last day to make a valid application was 20 May 2024 but that her application was not made until 21 April 2024.  She was invited to comment in writing in response to this by 2 July 2024. 

5. She sought an extension of time to make her comments, which was granted, and her new authorised representative responded to the Tribunal on 20 August 2024, stating that the applicant received a notification from her former agent on 21 May 2024 that her visa had been refused and that she acted immediately to appeal the decision.  The submission notes that her former agent had told her the calculation date for lodging was from the day after receiving the letter and so had believed 21 May 2024 was the last day to lodge the application. 

6. While the Tribunal appreciates the difficult circumstances the applicant faces, having relied on an authorised representative to receive news of her visa refusal but failing to notify her until it was too late, the Tribunal must emphasise that it has no discretion to waive the statutory time frame for making an application in these circumstances.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 29 April 2024: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 20 May 2024.

8. As the application for review was not received by the Tribunal until 21 May 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

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

   Mary Sheargold
   Member