Mauriello (Migration)

[2020] AATA 1363

Mauriello (Migration) [2020] AATA 1363 (16 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mariano Mauriello

CASE NUMBER:  1911510

DIBP REFERENCE(S):  BCC2019/58189

MEMBER:Margie Bourke

DATE:16 April 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 16 April 2020 at 1:53pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – application for review lodged out of time – applicant received letter from agent after time elapsed – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 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 Immigration on 4 April 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 8 May 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 4 April 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 by letter dated 30 March 2020 sent to his authorised recipient at her nominated email address, inviting the applicant to comment on the validity of his application for review, as it had not been made within the relevant time limit. In the letter, the tribunal advised the applicant that the time limit for applying for review is 21 days from the day the applicant is taken to have been notified of the primary decision. The tribunal stated that the primary decision was emailed to the applicant on 4 April 2019, and he was taken to have been notified on 4 April 2019.  The tribunal confirmed in its letter to the applicant that the application for review was made on 8 May 2019, which is more than 21 days after the applicant was notified of the Department’s decision.

5. The applicant responded to the tribunal by email on 30 March 2020. The applicant stated that he was late putting in the application for review (which he referred to as the application to appeal), because he did not receive his letter from his agent until 30 April 2019.  The applicant stated he made the decision to [put in the] appeal application on 8 May 2019.

6. I note the application for review had a handwritten note attached that stated the applicant’s agent gave him the decision letter on 30 April 2019, when it was lodged on 8 May 2019.  I accept the applicant has consistently stated his agent was tardy in advising him of the Department’s decision.   I am satisfied that the Department notified the applicant’s appointed agent, and the defect in communication lay between the applicant and his representative.  The notification by the Department to the applicant was done in compliance with the requirements.

7. I have considered the applicant’s comments in response to the validity of the application for review. I am satisfied the applicant was notified by the Department of the primary decision on 4 April 2019, and to make a valid application for review within the prescribed time limits, the last day that the applicant could validly make the application for review was 26 April 2019. I am satisfied that the applicant lodged the application for review on 8 May 2019.

8. The Tribunal finds that the applicant is taken to have been notified of the decision on 4 April 2019: s.494C of the Act. Therefore the prescribed period to apply for review ended on 26 April 2019.

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

    Margie Bourke
    Member