Sherpunja (Migration)

[2017] AATA 2022

Sherpunja (Migration) [2017] AATA 2022 (15 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yogendra Sherpunja

CASE NUMBER:  1718191

DIBP REFERENCE(S):  BCC2017/1111922

MEMBER:David McCulloch

DATE:15 September 2017

PLACE OF DECISION:  Sydney

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

Or Statement made on 15 September 2017 at 9:00am

CATCHWORDS

Migration – Cancellation – Student (Temporary)(Class TU) – Subclass 500 (Student) – Application for review received out of time – No jurisdiction

LEGISLATION

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

Migration Regulations 1994, r 2.55, r 4.10

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 25 May 2017, to cancel the applicant’s Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 16 August 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 7 working 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 25 May 2017 and dispatched by registered post, as well as being sent to two email addresses.

5. The Tribunal wrote to the applicant on 24 August 2017 indicating that, based on when and how the cancellation decision was sent to the applicant by the Department, he was taken to have received the notification on 5 June 2017. As there is a time limit of seven days from the notification of the decision to make the application for review, that meant that the last date for lodging the application for review was 15 June 2017. As the application was not received until 16 August 2017, it appeared to be out of time. The applicant was given the opportunity to respond to this preliminary view of the Tribunal.

6. This letter was sent to the email address nominated by the applicant to the Tribunal for receiving correspondence.  The email was undeliverable. As a result, the Tribunal called the applicant on the mobile phone number nominated by him leaving a message indicating that an attempt had been made to send an email but that it was undeliverable. The Tribunal asked him to call back to advise of the correct email address. There is no indication on the Tribunal file of a return call. The Tribunal sent the letter by post on 25 August 2017. No response to the communications were received by the applicant.

7. Regulation 2.55 requires that the notice of cancellation be sent to the last address known to the Minister. Government systems (ICSE) show a physical address for the applicant as at 12 July 2016. That same physical address was also noted on the system on 8 May 2017. An email address for the applicant was also indicated on 25 May 2017. The notice of cancellation sent on 25 May 2017 was sent to the physical address indicated by registered post as well as to the email address nominated, together with another email address.

8. The Tribunal is satisfied that the notice of cancellation was sent to the last addresses known to the Minister.

9. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

10. The Tribunal finds that, in accordance with s.494C of the Act, the applicant is taken to have been notified of the cancellation decision on 5 June 2017. Therefore the prescribed period within which the review application could be made ended on 15 June 2017. As the application for review was not received by the Tribunal until 16 August 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

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

    David McCulloch
    Member