Moyo (Migration)

[2019] AATA 2035

Moyo (Migration) [2019] AATA 2035 (5 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Jubilee Amanda Moyo

CASE NUMBER:  1836315

DIBP REFERENCE(S):  BCC2018/1247828

MEMBER:Bridget Cullen

DATE:5 March 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 05 March 2019 at 3:13pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – review application made out of time – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 347, 494C
Migration Regulations 1994 (Cth), r 4.10

CASES
Beni v Minister for Immigration and Border Protection [2018] FCAFC 228

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 12 September 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 11 December 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 12 September 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 2 January 2019, an officer of the Tribunal wrote the following to the applicant:

   “I am of the view that your application is not a valid application as it was not lodged within the relevant time limit. The time limit is 21 days from the day on which you are taken to have been notified of the primary decision. The primary decision was emailed to you on 12 September 2018 and, on the basis that 12 September 2018 was the date on which you are taken to have been notified, the last day for lodging the application for review was 3 October 2018. As the application was not received until 11 December 2018, it appears to be out of time. However, this is a matter which must be determined by a Member.

   If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 16 January 2019. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.”

5. On 16 January 2019, the applicant provided a handwritten response to the letter. The Tribunal has considered the letter and accompanying material carefully. The letter can be summarised as follows.

6. The Applicant provides an explanation that the health examination required for the grant of the visa clashed with a practical exam at their TAFE, and they chose to do the health examination. The TAFE would not allow them to resit the exam. From there, complaints were lodged before they were eventually placed on a twelve month transition programme, free of charge, to rectify what had occurred.

7. The Applicant was told by the TAFE that they would have the subjects mapped out for them, and then the Confirmation of Enrolment would be sent to them, to provide to the Department.

8. The Applicant contacted the TAFE a week later as they had not heard anything, and were told that there would be a delay until November before the Confirmation of Enrolment would be sent to them, as the transition programme had been reviewed. They told the Department of this, and were told that this had been noted, and they were still on a Bridging Visa.

9. At the beginning of November, the Applicant contacted the Department and was told a decision had been made in September and they were not on a valid visa. They claim they checked their email and no email had been received, and then confirmed on their IMMI Account that that a decision, dated 12 September 2018, refused the grant of the visa, for failing to provide the Confirmation of Enrolment and Overseas Health Cover.

10. The applicant explains that this has been a stressful process, and expresses disappointment that the institutions and departments who have let the applicant down do not have to suffer personally for their mistakes.

11. While the Tribunal expresses empathy towards the applicant’s situation, it, following the Full Federal Court decision of Beni v Minister for Immigration and Border Protection [2018] FCAFC 228, finds that there is no discretion to extend the time limit for lodging a valid application for review in the Migration and Refugee Division of the Administrative Appeals Tribunal.

12. The Tribunal finds that the applicant is taken to have been notified of the decision on 12 September 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 3 October 2018.

13. As the application for review was not received by the Tribunal until 11 December 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

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

    Bridget Cullen
    Member