Nakagawa (Migration)

[2018] AATA 836

Nakagawa (Migration) [2018] AATA 836 (28 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hiroki Nakagawa

CASE NUMBER:  1800575

MEMBER:David McCulloch

DATE:28 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 28 March 2018 at 10:49am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Invalid application – No fees paid – Review application out of time

LEGISLATION
Migration Act 1958, s 347
Migration Regulations 1994 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 24 October 2017 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 8 January 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 7 working 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 24 October 2017 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 finds that the applicant is taken to have been notified of the decision on 24 October 2017. Therefore the prescribed period to apply for review ended on 2 November 2017.

5. As this application for review was not received by the Tribunal until 8 January 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.

6. Two other separate applications for review of the same delegate’s decision have previously been made to the Tribunal. In relation to the first review request, within time, the Tribunal made a decision on that application on 24 November 2017, determining that it had no jurisdiction in the matter on the basis that the application was not in the approved form and that no fee had been paid.

7. The further review application was made on 15 November 2017.  On 1 December 2017, the Tribunal determined that it had no jurisdiction in relation to the matter on the basis that the matter had previously been the subject of a valid review by the Tribunal.  In fact, this was not the case as the Tribunal had only originally determined that it had no jurisdiction, and therefore had not determined the review. Nevertheless, it was correct that the Tribunal had no jurisdiction given that the review application was out of time, for the same reasons as determined above in relation to the current request for review.

   DECISION

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

   David McCulloch
   Member