Liu (Migration)

[2018] AATA 2866

Liu (Migration) [2018] AATA 2866 (18 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Baoling Liu

CASE NUMBER:  1814944

DIBP REFERENCE(S):  BCC2018/1237159

MEMBER:Stephen Conwell

DATE:18 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 18 June 2018 at 10:58am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Review application out of time

LEGISLATION
Migration Act 1958, ss 65, 347
Migration Regulations 1994, rr 2.55, 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 26 April 2018 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 22 May 2018. 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 26 April 2018 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 25 May 2018 inviting her to comment upon its preliminary view that the application was not valid given it had not been lodged within 21 days of the notification of the primary decision. It was stated that the application appeared out of time. The letter indicated the Tribunal required a response by 8 June 2018.

5. The applicant’s representative submitted a written statement via email of 31 May 2018 offering an explanation for the applicant’s late of his review application. Essentially the applicant claims that her late lodgement was the result of her being misled by a non-registered migration agent, Mr Jun Xu you of Winner Winner International.  It appears that the agent and his associates mistakenly believed that the time limit for applying for review is 28 days. The email also states that the applicant has lodged a complaint regarding the agent’s conduct at the Department of Home Affairs as well as at the Office of the Migration Agents Registration Authority.

6. The Tribunal has considered the representative's written statement regarding the circumstances surrounding his client’s out-of-time application for review of the Department's decision to refuse his application for a Student visa. Unfortunately, the Tribunal has no discretion in this matter. Once an applicant has been validly notified of the primary decision, the application for review must be lodged with the Tribunal within the relevant prescribed period. The Tribunal has no power to extend the time limit.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 26 April 2018: r.2.55 of the Regulations. Therefore the prescribed period to apply for review expired on 17 May 2018.

8. As the application for review was not received by the Tribunal until 22 May 2018 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.

   Stephen Conwell
   Member