Tomai (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for review by Mr Tomai concerning a decision made by the Department regarding his Student (Class TU) visa, Subclass 500. The central dispute revolved around whether the AAT had jurisdiction to hear Mr Tomai's application, which was lodged one day after the prescribed time limit had expired.

The primary legal issue before the Tribunal was whether it possessed jurisdiction to consider Mr Tomai's application for review, given that it was filed outside the statutory timeframe stipulated by the relevant migration legislation. This required the Tribunal to determine if the circumstances of the late filing, specifically the delay by Mr Tomai's agent in forwarding the notification of the Department's decision, could excuse the lateness and permit the Tribunal to exercise its jurisdiction.

The Tribunal reasoned that the Migration Act 1958 (Cth) and associated regulations prescribe strict time limits for lodging applications for review. In this instance, the application was received by the Tribunal on 4 November 2021, which was one day after the 21-day period for making an application for review had expired. The Tribunal found that the delay by Mr Tomai's agent in forwarding the notification did not operate to extend the statutory time limit or confer jurisdiction upon the Tribunal. Consequently, the Tribunal concluded that the application for review was not made in accordance with the relevant legislation.

As a result of the application not being made within the prescribed period, the Tribunal determined that it lacked jurisdiction to hear the matter. The Tribunal therefore made no order in relation to the merits of Mr Tomai's visa application, as its jurisdiction was confined to determining whether the application was validly before it.