Wang (Migration)

[2024] AATA 1641

Wang (Migration) [2024] AATA 1641 (2 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shuai Wang

REPRESENTATIVE:  Ms Billie Wei Shi (MARN: 9792783)

CASE NUMBER:  2405331

HOME AFFAIRS REFERENCE(S):          BCC2023/6051710

MEMBER:Meena Sripathy

DATE:2 May 2024

PLACE OF DECISION:  Sydney

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

Statement made on 02 May 2024 at 12:50pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – review application was not lodged within the relevant time limit – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 347,494C(5)

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 5 December 2023 to cancel the applicant’s Student (Temporary) (Class TU) visa under the Migration Act 1958 (Cth) (the Act). The review application was lodged with the Tribunal on 18 March 2024. 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 7 working 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 5 December 2023 and dispatched by post to the last address known to the Minister. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 5 April 2024 an officer of the Tribunal wrote to the applicant to advise that his review application may not be valid as it was not lodged within the relevant time limit. The letter advised that the time limit is 7 working days from the day on which he was taken to have been notified of the primary decision. The primary decision was posted to him on 5 December 2023 and, on the basis that 14 December 2023 was the date on which he was taken to have been notified and the last day for lodging the application for review was 27 December 2023. As the application was not received until 18 March 2024, it appears to be out of time. He was invited to make comments on whether a valid application was made by 19 April 2024. 

5. To date, the Tribunal has not received any response to the invitation to comment. 

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 14 December 2023: s 494C of the Act. Therefore the prescribed period to apply for review ended on 27 December 2023.

7. As the application for review was not received by the Tribunal until 18 March 2024 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.

   Meena Sripathy
   Member