ONG (Migration)

[2017] AATA 1696

ONG (Migration) [2017] AATA 1696 (5 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr CHENG HUA ONG

CASE NUMBER:  1711402

DIBP REFERENCE(S):  BCC2017/155897

MEMBER:Penelope Hunter

DATE:5 July 2017

PLACE OF DECISION:  Sydney

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

Statement made on 05 July 2017 at 12:44pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Review application lodged out of time

LEGISLATION

Migration Act 1958, ss 65, 347(1)(b), 412(1)(b), 494C

Migration Regulations 1994, Schedule 2, r 4.31(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 5 May 2017, to refuse to grant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 29 May 2017. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

3. 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.

4. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 5 May 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. The Tribunal acknowledges and has considered the submissions of the applicant’s agent received on 7 June 2017. It acknowledged that the due date for lodgement of the applicant’s application was missed. The agent submits that there was a power outage in their office on 26 May 2017 which meant that they could not use the reminder system in their computer and this caused the problem. No further evidence was submitted to support the power outage. It was submitted that the application was lodged the next business day being 29 May 2017.

6. On behalf of the applicant the operation of s.412(1)(b) of the Act in not contested. Neither were any submissions received to dispute the operation of r.4.31(2) of the Regulations. It is not disputed that the Tribunal was correct in calculating the last day for giving an application for review.

7. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 5 May 2017. Therefore the prescribed period within which the review application could be made ended on 26 May 2017. It is unfortunate that the applicant placed sole reliance on a computer reminder system that operated only on the last day for the application for review to be submitted. However, there is no provision in the legislation for the Tribunal to extend the time for lodgement of an application.

8. As the application for review was not received by the Tribunal until 29 May 2017 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

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

   Penelope Hunter
   Member