WFPC and Minister for Immigration and Multicultural Affairs (Migration)

[2024] ARTA 730

WFPC and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 730 (4 November 2024)

Applicant/s:  WFPC

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:                2024/8459

Tribunal:Senior Member K Raif

Place:Sydney

Date:4 November 2024

Decision:As the application was lodged out of time, the Tribunal is satisfied that the decision is not reviewable by the Tribunal and pursuant to section 97 of the Administrative Review Tribunal Act 2024 dismisses this application for review.

.................................[SGD].......................................

Senior Member K Raif

Catchwords

MIGRATION – interlocutory application for extension of time to apply – application for review lodged out of time – reasons for out of time application not exceptional – application under review dismissed pursuant to s 97 of Administrative Review Tribunal Act.

Legislation

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Statement of Reasons

1. The Applicant lodged an application with the Tribunal on 23 October 2024 for a review of a decision made by a delegate of the Respondent on 1 October 2024. This decision was forwarded to the Applicant by email under cover of a letter from the Respondent dated 3 October 2024.

2. The Applicant was notified of the abovementioned decision in accordance with subsection 501G(1) of the Migration Act 1958 (Cth) (‘the Act’). In the review application received by the Tribunal on 23 October 2024, the Applicant states that he was notified of the delegate’s decision in person of 3 October 2024, although the notification letter refers to notification by email. Whether the applicant was notified in person or by email, Regulation 2.55(5) of the Migration Regulations 1994 (Cth) provides that the Applicant is deemed to have taken notification of the delegate’s decision on the same day, 3 October 2024.

3. Under subsection 500(6B) of the Act, an application for review of a decision made by a delegate of the Respondent must be lodged with the Tribunal within nine (9) days after the day on which the person was notified of the decision in accordance with subsection 501G(1) of the Act.

4. The Applicant did not lodge the application for review with the Tribunal within nine (9) days after the day on which he was notified of the decision. The review application filed on 23 October 2024 is therefore out of time.

5. The applicant informed the Tribunal that he was informed that the application could be lodged within 28 days and that period is also stated in the notification letter. The applicant suggested that he may have misunderstood the requirement, perhaps due to his limited English. The Tribunal is mindful that the notification letter does refer to the correct period in which an application for review can be made. The Tribunal cannot confirm, nor comment, on any other advice the applicant may have received. Notably, the Tribunal has no discretion to extend the period in which a valid application can be made.

6. As the application was lodged out of time, the Tribunal is satisfied that the decision is not reviewable by the Tribunal and pursuant to section 97 of the Administrative Review Tribunal Act2024 dismisses this application for review.