Pun (Migration)

[2018] AATA 2440

Pun (Migration) [2018] AATA 2440 (31 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aaita Bahadur Pun

CASE NUMBER:  1813125

DIBP REFERENCE(S):  BCC2018874314

MEMBER:Jennifer Cripps Watts

DATE:31 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 31 May 2018 at 10:54am

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 500 (Student) – Review application out of time – No jurisdiction

LEGISLATION
Migration Act 1958, ss 65, 347, 494C
Migration Regulations 1994, Schedule 2 cl 500.3, 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 22 March 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 7 May 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 applicant in this matter applied for a student visa on 23 February 2018 as a member “…of the family unit of a person (the primary person) who satisfies the primary criteria”: cl.500.3. The primary person is his wife, Man Kumari Pun, who has been granted a student visa on 10 May 2018 and is said to be studying nursing in Adelaide. Her visa ceases on 15 May 2019.

4. The question for the Tribunal, in satisfying itself whether there is jurisdiction to review the decision to refuse the visa, is whether the applicant was properly notified of the refusal by the Department and, if he was, whether he applied for an application for review by the Tribunal within time, that is, 21 days after the visa refusal was notified.

5. The material before the Tribunal indicates that the applicant was properly notified of the decision to refuse his visa on 22 March 2018 and the decision was dispatched by email to the email address of record.   The applicant had until 12 April 2018 to lodge a valid application for review with the Tribunal - the Tribunal did not receive the applicant’s review application until 7 May 2018.  On 15 May 2018 a letter was sent to the applicant advising that it appeared his application was out of time and not valid because he needed to have lodged his application for review no later than 12 April 2018, about four weeks prior.

6. The applicant was invited by the Tribunal, in writing, to respond or provide comment – by 29 May 2018 - on the issue of it appearing that his application was not valid because it was lodged out of time.  The applicant did respond.  All relevant matters in the response and statutory declaration have been considered.

7. The applicant provided a statutory declaration, sworn on 18 May 2018, in which he included information saying, essentially, that he did not receive notification from the Department of the decision to refuse his visa on 22 March 2018, and neither did his wife (the primary person) and that the first time he learned of the refusal was on 1 May 2018.

8. The applicant claims he was not notified by the Department of the decision to refuse his visa and that because he did not find out about the refusal until 1 May 2018, this is the reason his application for review with the Tribunal was lodged out of time, about four weeks after the 21 day period the applicant had to apply for Tribunal review had passed.

9. The applicant provided the Tribunal with a copy of his wife’s student visa grant, dated 10 May 2018, which the Tribunal observes was sent to the same email address as the applicant’s visa refusal dated 22 March 2018, which he claims neither of them received.  The Tribunal does not accept that the applicants (the applicant in this matter and the primary person, his wife) were not notified of the applicant’s visa refusal on 22 March 2018, as the applicant’s wife was advised of her own visa grant on 10 May 2018, to the same email address, indicating that at the time the applicant’s visa was refused in March, the notification email address was same as appears to have continued to be until at least 10 May 2018, well after the applicant in this matter was notified.

10. There is no evidence before the Tribunal that the applicant in this matter (or the primary applicant for the student visa, his wife) notified the Department at any time prior to notification of the applicant’s visa refusal on 22 March 2018 (or up to 10 May 2018) of any change to either of their circumstances, for example, contact details such as the email address for communication.

11. The Tribunal finds that the applicant is taken to have been notified of the decision on 22 March 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 12 April 2018.

12. As the application for review was not received by the Tribunal until 7 May 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

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

    Jennifer Cripps Watts
    Member