Singla (Migration)

[2022] AATA 2044

Singla (Migration) [2022] AATA 2044 (14 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Himanshu Singla

REPRESENTATIVE:  Mr Shiva Sesham (MARN: 0105419)

CASE NUMBER:  2204563

HOME AFFAIRS REFERENCE(S):          BCC202181381

MEMBER:Rachel Da Costa

DATE:14 June 2022

PLACE OF DECISION:  Sydney

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

Statement made on 14 June 2022 at 12:44pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – review application out of time – extraordinary circumstances of the COVID10 pandemic – 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 of a delegate of the Minister for Home Affairs on 17 February 2022 to refuse to grant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The review application was lodged with the Tribunal on 29 March 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 applicant was notified of the decision in accordance with the statutory requirements.

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 17 February 2022 and dispatched by email to his representative who is also his authorised recipient. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 4 April 2022, the Tribunal wrote to the applicant explaining that it was of the view that his application was not valid because it was not lodged within the relevant time limit. The letter explains that the time limit for lodgement is 21 days from the day on which he was taken to have been notified of the primary decision. It goes on to say that the primary decision was emailed to the applicant’s authorised recipient on 17 February 2022 and so the last date for lodging the application for review was 10 March 2022. It states that as the application for review was not received until 29 March 2022, it appears to be out of time. The letter invited the applicant to comment on the validity of his application by 19 April 2022. The letter was sent by email to the applicant’s representative as his authorised recipient.

5. On 11 June 2022, the applicant’s representative responded in writing. He submitted that because of the Covid-19 pandemic his staff are working from remote locations and are not attending the office. He stated that one of the staff members was critically injured and could not work during this period. He stated that the injury mentally and physically stressed him and since he was working remotely the matter got serious. He submitted that the Tribunal should consider these compelling reasons compassionately and the situation was beyond their control because of the extraordinary circumstances created by the pandemic. The representative submitted an extract from a medical report which indicates the injury to the staff member was an ankle sprain which occurred on 2 January 2022.

6. The Tribunal has considered the representative’s response, however it does not adequately explain the reason for the applicant’s delay in applying for review and it does not change the Tribunal’s view. The Tribunal finds that the applicant is taken to have been notified of the decision on 17 February 2022: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 10 March 2022.

7. As the application for review was not received by the Tribunal until 29 March 2022 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.

   Rachel Da Costa
   Member