Mutambiranwa (Migration)

[2018] AATA 2945

Mutambiranwa (Migration) [2018] AATA 2945 (27 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tulani Mutambiranwa

CASE NUMBER:  1816668

DIBP REFERENCE(S):  BCC2018/857208

MEMBER:Fiona Meagher

DATE:27 June 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 27 June 2018 at 7:54pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – review application out of time – decision notification by email – applicable fee not paid – no jurisdiction

LEGISLATION
Migration Act 1958, ss 347, 494C
Migration Regulations 1994, rr 4.10, 4.13

CASES

Braganza v MIMA (2001) 109 FCR 364
Kirk v MIMA (1998) 87 FCR 99

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister of Home Affairs on 28 May 2018 to cancel the applicant’s Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 7 June 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. Pursuant to s.347(1) of the Act and r.4.13 of the Migration Regulations 1994, this application had to be given to the Tribunal within the prescribed period, as specified in s.347(1)(b) and r.4.10, and accompanied by the prescribed fee unless a determination has been made under r.4.13(4) that the fee should be reduced on the basis of financial hardship. The prescribed period is set out in r.4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the prescribed period ended on 6 June 2018. The fee must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99, or if a determination has been made under r.4.13(4), within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 28 May 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 8 June 2018, the Tribunal sent the applicant a letter noting its preliminary view that it lacked jurisdiction on the basis that the application had been lodged out of time and, further, on the basis that the application was not a valid application as the prescribed fee had not been paid.

5. On 21 June 2018, the applicant responded to the Tribunal’s 8 June 2018 as follows (unedited):

   I am writing in response to when I received the notification. I recieved the email on the 29th of May. I spent the whole day on the 28th waiting for any emails because of the importance of the matter but it never came and I only saw the email on the 29th that is why I responded on the 7th of June . It took me those days to respond because I had to look for advice. Please advice on what I should do now.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 28 May 2018: s.494C of the Act. Therefore the prescribed period to apply for review, and pay the prescribed fee, ended on 6 June 2018.

7. The Tribunal has taken into account the applicant’s response. However, as the application for review was not received by the Tribunal until 7 June 2018, the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

8. Further, the prescribed fee has not been paid and no determination has been made (or requested) that the fee should be reduced. In these circumstances, the application for review is also not a valid application and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Fiona Meagher
   Member