Tomai (Migration)

[2022] AATA 1487

Tomai (Migration) [2022] AATA 1487 (15 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Stefano Tomai

CASE NUMBER:  2115809

HOME AFFAIRS REFERENCE(S):          BCC2020/1672939 PNJ

MEMBER:Steven Griffiths

DATE:15 February 2022

PLACE OF DECISION:  Adelaide

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

Statement made on 15 February 2022 at 2:15pm

CATCHWORDS
MIGRATION – Student (Class TU) visa – Subclass 500 (Student) – applications for review to be made within 21 days after notification of department’s decisions – application made one day after prescribed period ceased – agent’s delay in forwarding notification – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 347(1)(b), 494C
Migration Regulations 1994 (Cth), 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 13 October 2021 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 4 November 2021. 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 13 October 2021 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The Tribunal finds that the applicant is taken to have been notified of the decision on 13 October 2021: s 494C of the Act. Therefore the prescribed period to apply for review ended on 3 November 2021.

5. The Tribunal notes the applicant was provided with a natural justice letter on 26 November 2021 confirming the application had not been lodged within the required time, while providing the applicant until 10 December 2021 to make a submission.

6. The Tribunal notes the applicant made a submission on 10 December 2021, stating he received notification of the refusal of the visa on 20 October 2021 when the refusal notice of the Department was provided to him by his registered agent.

7. The Tribunal notes the submission of 10 December 2021 states the belief of the applicant that his 21-day period to lodge a review application commenced on the date he received the notice of refusal, this being when it was forwarded to him by his registered agent on 20 October 2021. The Tribunal does not accept this argument of the applicant.

8. The Tribunal notes with the submission of 10 December 2021 includes screen shots of the emails the applicant received from the registered agent stating the visa application was refused by the Department, with the screenshots detailing the messages were provided to the applicant on 20 October 2021.

9. The Tribunal notes that from the time of the applicant receiving the refusal decision on the visa application to the end of the prescribed period for the lodgement of a review application, was a period of 14 days.

10. The Tribunal notes the review application was submitted 1 day after the prescribed period had ceased.

11. As the application for review was not received by the Tribunal until 4 November 2021 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

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

    Steven Griffiths
    Member