Waqar (Migration)

[2017] AATA 1934

Waqar (Migration) [2017] AATA 1934 (20 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Nauman Waqar

CASE NUMBER:  1719879

DIBP REFERENCE(S):  BCC2017/1034015

MEMBER:Penelope Hunter

DATE:20 September 2017

PLACE OF DECISION:  Sydney

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

Statement made on 20 September 2017 at 2:55pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Review application out of time

LEGISLATION

Migration Act 1958, ss 65, 347(1)(b), 494C

Migration Regulation 1994, r 4.10

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 7 August 2017, to refuse to grant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 29 August 2017. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

3. Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 (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.

4. On 1 September 2017, the Tribunal wrote to the applicant and raised the issue of the relevant time limit for the lodgement of applications. The applicant was invited to make submissions by 15 September 2017.

5. On 15 September 2017, the applicant provided a written submission to the Tribunal in which he set out that he miscalculated the 21 day time limit. He claimed to be in shock. The applicant then took some time to consult with agents and explore other study options. He further set out that he decided to stay in Australia and would like the opportunity to explain himself and complete his education.

6. The Tribunal has considered the submissions of the applicant. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 7 August 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

7. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 7 August 2017. Therefore the prescribed period within which the review application could be made ended on 28 August 2017. The applicant does not dispute this calculation. This is not a matter in which the legislation provides any discretion. As the application for review was not received by the Tribunal until 29 August 2017 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.

   Penelope Hunter
   Member