SINGH (Migration)

[2023] AATA 165

SINGH (Migration) [2023] AATA 165 (20 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Navsangeet Singh
Mrs Ramandeep Kaur
Miss Navreet Kaur

CASE NUMBER:  2212555

HOME AFFAIRS REFERENCE(S):          BCC2021/1067332

MEMBER:Katie Malyon

DATE:20 January 2023

PLACE OF DECISION:  Sydney

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

Statement made on 20 January 2023 at 4:22 pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – review application out of time – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 347, 494C
Migration Regulations 1994, r 4.10

statement of decision and reasons

application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 August 2022 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).  The review application was lodged with the Tribunal on 26 August 2022.  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 reg 4.10 of the Migration Regulations 1994 (Cth) (the Regulations) an application for review of this decision had to be made within 21 days after the applicants were notified of the decision in accordance with the statutory requirements.

3. Material before the Tribunal indicates that the applicants were notified of the delegate’s decision to refuse their Subclass 500 visa application by letter dated 4 August 2022 which dispatched by email to their representative.  Therefore, Tribunal is satisfied that the applicants were notified of the decision in accordance with the statutory requirements.

4. On 8 September 2022, the Tribunal sent the applicants a natural justice letter informing them that it appeared there application had been lodged out of time.  Mr Singh responded on behalf of the applicants acknowledging that notice had been received that an application for merits review must be given to the Tribunal within 21 days after the day on which the applicants are taken to have received the refusal letter and, as the refusal letter was sent by email, they are taken to have received it at the end of the day it was transmitted (emphasis added). 

5. Mr Singh responded that the timeline contemplated encompasses the period between 5 August 2022 and 26 August 2022.  However, he has failed to appreciate that, as the delegate’s decision was transmitted on 4 August 2022 that is the date that the delegate’s decision is taken to have been received.  Accordingly, 21 days after that date expired on 25 August 2022. 

6. The Tribunal finds that the applicants are taken to have been notified of the delegate’s refusal decision on 4 August 2022: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 25 August 2022.

7. As the application for review was not received by the Tribunal until 26 August 2022 it follows that the application for review was not made in accordance with the relevant legislation.  In the circumstances, the Tribunal has no jurisdiction in this matter.

   decision

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

   Katie Malyon

   
   Member