Palliyaguruge (Migration)

[2019] AATA 6046

Palliyaguruge (Migration) [2019] AATA 6046 (25 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Don Kushan Kamindha Palliyaguruge

CASE NUMBER:  1923854

DIBP REFERENCE(S):  BCC2019/185107

MEMBER:Hugh Sanderson

DATE:25 November 2019

PLACE OF DECISION:  Sydney

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

Statement made on 25 November 2019 at 1:45pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – lodgement of application – application lodged out of time – applicant properly notified – no jurisdiction  

LEGISLATION

Migration Act 1958 (Cth), ss 347, 494C
Migration Regulations 1994 (Cth), r 4.10(1)(b)

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 26 March 2019 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 26 August 2019. 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(1)(b) of the Migration Regulations 1994 (the Regulations) an application for review of this decision had to be made within 7 days after the applicant was notified of the decision in accordance with the statutory requirements.

3. The Tribunal wrote to the applicant on 17 September 2019 noting that as he received the Department’s decision by email on 26 March 2019 the last day for lodging the application for review was 4 April 2019. As the application was not received by the Tribunal until 26 August 2019 the application appeared to be out of time. The applicant was invited to comment on this information by 1 October 2019. It was also noted that no fee had been paid by the applicant.

4. On 9 October 2019 the applicant contacted an officer from the Tribunal by telephone. The applicant confirmed he had received the invitation to comment on 17 September 2019. He confirmed that he was aware he should have responded to the invitation by 1 October 2019 but said that as he thought the application was proceeding he did not respond. Since then, the applicant has not provided any comment in respect of the jurisdictional issue. He has provided details of his change of address.

5. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 26 March 2019 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 26 March 2019: s.494C of the Act. Therefore the prescribed period to apply for review ended on 4 April 2019.

7. As the application for review was not received by the Tribunal until 26 August 2019 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

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

   Hugh Sanderson
   Member