Modasiya (Migration)

[2023] AATA 4057

Modasiya (Migration) [2023] AATA 4057 (2 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammedrahil Mohammedhabib Modasiya

REPRESENTATIVE:  Mr Shoaib Vahora (MARN: 0848555)

CASE NUMBER:  2312283

HOME AFFAIRS REFERENCE(S):          BCC2022/2219479

MEMBER:Cheryl Cartwright

DATE:2 November 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 02 November 2023 at 1:37pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) Subclass 500 visa – last email address known to the Minister – applicant is taken to have been notified of the decision on 13 February 2023 – review application was not lodged within the relevant time limit – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 347,494C(5)

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 Home Affairs on 13 February 2023 to cancel the applicant’s Student (Temporary) (Class TU) visa under the Migration Act 1958 (Cth) (the Act). The review application was lodged with the Tribunal on 15 August 2023. 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 seven working days after the applicant was notified of the decision in accordance with the statutory requirements.

3. On 23 January 2023 the Department sent to the applicant a ‘Notice of Intention to Consider Cancellation Under Section 116 of the Migration Act 1958’ addressed to 9/40 Fairmount Street Lakemba NSW and sent via email to the address that had been provided by the applicant, [email protected]. On 13 February 2023 the Department sent to the applicant a ‘Notification of Cancellation Under Section 116 of the Migration Act 1958’ to the same address.

4. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 13 February 2023 and dispatched by email on that date. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. An application for review of the decision was received by the Tribunal on 15 August 2023.

5. On 5 September the Tribunal wrote to the applicant, advising him that the application for review was not a valid application because it had not been lodged within the relevant time limit. The time limit is seven working days from the day on which the applicant was notified of the primary decision. The primary decision was emailed to the applicant on 13 February 2023, therefore the last day for lodging the application for review was 22 February 2023. As the application for review was not received by the Tribunal until 15 August 2023 it was not lodged within the relevant time limit. The Tribunal invited the applicant to provide any comments in writing on the validity of the application for review by 19 September 2023.

6. In a submission dated 14 September 2023 the representative of the applicant Shoaib Vahora states that the Notification of Cancellation was invalid and so the time to lodge an application for review of the cancellation had not commenced on the stated day of delivery, 13 February 2023. The representative notes r 2.55(3) which prescribes the way a decision should be transmitted to a visa holder. He notes that, while r 2.55(3)(d)(ii) provides for delivery via email, the regulation also requires that the email address must be to the ‘last fax number, email address or other electronic address known to the Minister’.

7. At paragraph 30 of his submission, the representative states that the applicant changed his email address to [email protected] ‘in around October 2022’. At paragraph 35 of his submission, the representative states that the Department has no evidence that the email address that was used to send the notice, [email protected], was the last known email address to the Minister.

8. In a statutory declaration dated 14 September 2023 the applicant states that he changed his email address to [email protected] ‘in around October 2022’ and he did not receive the correspondence from the Department that notified him of the cancellation of his visa. The Tribunal notes that the ‘Notification of Intent to Consider Cancellation’ and the ‘Notification to Cancel’ were sent to the email address that had been provided by the applicant in his visa application, [email protected].

9. The Tribunal notes that no advice has been received from the review applicant regarding his change of email address in approximately October 2022.

10. The Tribunal also notes that the applicant sent an email enquiry to the Department dated 2 August 2023 from the email address that he had provided to the Department as his contact email address, [email protected]. The Tribunal notes that this communication was sent to the Department after the date that the applicant claims to have changed his email address and after the Notification of Intent to Consider Cancellation and the Notification to Cancel were sent to the applicant via that address. The Tribunal therefore considers that, at the time of notification by the Department, this address was being used by the applicant and it was the last email address known to the Minister.

11. In his submission dated 14 September 2023, the review applicant’s representative also states that the information provided in the Notification of Cancellation, which the applicant claims not to have received, did not ‘completely or clearly include all relevant information required for the applicant to calculate the time in which an application for review to the AAT can be made’. The representative states that the information provided was insufficient for the applicant to be able to ‘calculate’ the time he had in which to lodge an application for review.

12. The Tribunal notes and the representative acknowledges that the Notification to Cancel states:

    The prescribed timeframe commences when you are taken to have received this letter and ends at the end of seven (7) working days after the day on which you are taken to have receive d this letter. As this letter was sent to you by Email, you are taken to have received it at the end of the day it was transmitted.

13. The Tribunal also notes that electronic communications are electronically dated and considers that the advice that the applicant had seven working days to lodge an application for review is clear.

14. The Tribunal finds that the applicant is taken to have been notified of the decision on 13 February 2023: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 22 February 2023.

15. As the application for review was not received by the Tribunal until 15 August 2023 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

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

    Cheryl Cartwright
    Member