Yang (Migration)

[2018] AATA 701

Yang (Migration) [2018] AATA 701 (12 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Yu-Chia Yang

CASE NUMBER:  1803601

DIBP REFERENCE(S):  BCC2017/3166371

MEMBER:Penelope Hunter

DATE:12 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 12 March 2018 at 11:21am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 – Special Consideration Policy cannot override the provisions of the legislation – Application notified of the decision – No jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 347, 494C
Migration Regulations 1994, r 4.10

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Immigration on 10 January 2018 to refuse to grant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 12 February 2018. 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 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.

3. At the time of application and in response to a request for comment by the Tribunal, the agent for the applicant acknowledged that the application was not lodged until 33 calendar days after the applicant had received the notification of refusal from the Department. It was requested that the Tribunal accept the application under the Special Consideration Policy because the reason for the later application could not have reasonably been avoided or guarded against by the applicant and was beyond her control.[Details deleted].

4. The Tribunal has considered the submissions. There is no relevant Special Consideration Policy that would override the provisions of the legislation. The relevant provisions in MSI 7.3.4, which were issued in 2003, are not relevant to the jurisdictional issue. They related to the assessment of the application and a different class of visa to that sought by the applicant. Unfortunately the applicable legislation does not provide the Tribunal with any discretion.

5. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 10 January 2018 and dispatched by email. It is confirmed in submissions from the applicant’s representative that the notification was received on that date. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 10 January 2018, s.494C of the Act. Therefore the prescribed period to apply for review ended on 31 January 2018.

7. As the application for review was not received by the Tribunal until 12 February 2018 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