Yeh (Migration)

Yeh (Migration) [2024] AATA 3415 (5 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ching Lam Domi Yeh
CASE NUMBER:  2400345
HOME AFFAIRS REFERENCE(S):          BCC2023/5002928
MEMBER:Jade Murphy
DATE:5 September 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 5 September 2024 at 4:49pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – review application lodged out of time – defect in notification – substantial compliance – No jurisdiction
LEGISLATION
Migration Act 1958 (Cth), ss 65, 347, 494C
Migration Regulations 1994 (Cth), r 4.10
CASES
Sandor v MICMA [2023] FCA 434
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Home Affairs on 19 December 2023 to refuse to grant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The review application was lodged with the Tribunal on 10 January 2024. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
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 21 days after the applicant was notified of the decision in accordance with the statutory requirements.
The Tribunal considers that the Department’s notification letter did not explain that the applicant was taken to have received the letter when their authorised recipient received it: Sandor v MICMA [2023] FCA 434. The Tribunal has considered the content of the refusal notification letter and considers that although there is an error in the notification, the notification is still valid because it substantially complies with the content requirements and the failure to strictly comply does not cause substantial prejudice to the applicant’s rights.
The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 19 December 2023 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in substantial accordance with the statutory requirements, notwithstanding the issue identified at paragraph 3 above.
The Tribunal finds that the applicant is taken to have been notified of the decision on 19 December 2023: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 9 January 2024.
As the application for review was not received by the Tribunal until 10 January 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.
On 12 August 2024 the Tribunal wrote to the applicant inviting them to comment on its preliminary view that the application for review appeared to be affected by a notification defect but that it may otherwise substantially comply with the notice requirements and therefore still be a valid application, and that it appeared to be lodged out of time.
On 13 August 2024 the applicant wrote to the Tribunal and requested to withdraw their review application. No other submissions were made regarding the validity of the application or the Tribunal’s preliminary concerns.
The Tribunal is satisfied that the defect in notification by the Department does not render the application invalid because it substantially complies with the content requirements. However, as the application for review was not received by the Tribunal until 10 January 2024 the application for review was not made in accordance with the relevant legislation and the Tribunal finds that it has no jurisdiction in this matter.
The Tribunal notes the applicant’s request to withdraw the application however as the Tribunal has found that it has no jurisdiction in this matter, it follows that it cannot accept the applicant’s request for withdrawal because there is no review application capable of being withdrawn.
DECISION
The Tribunal does not have jurisdiction in this matter.
Jade Murphy
Member

The Administrative Appeals Tribunal (AAT) considered a matter involving an applicant seeking review of a decision concerning a Student (Temporary) (Class TU) visa, subclass 500. The applicant had lodged their review application out of time, and the central issue revolved around whether there had been substantial compliance with the notification requirements, which would have conferred jurisdiction on the Tribunal.

The primary legal issue before the Tribunal was whether it possessed jurisdiction to hear the applicant's review application, given that it was lodged after the prescribed time limit. This question hinged on whether a defect in the notification provided to the applicant constituted a failure to substantially comply with the requirements for lodging a valid application.

The Tribunal found that it did not have jurisdiction in this matter. Consequently, as there was no review application properly before it, the Tribunal was unable to accept the applicant's subsequent request to withdraw the application. The Tribunal's finding of no jurisdiction meant that it lacked the power to make any substantive orders, including the acceptance of a withdrawal.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established