Yip (Migration)

[2023] AATA 1375

Yip (Migration) [2023] AATA 1375 (30 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jian En Yip

CASE NUMBER:  2217702

HOME AFFAIRS REFERENCE(S):          BCC2020/1141824

MEMBER:Wan Shum

DATE:30 January 2023

PLACE OF DECISION:  Sydney

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

Statement made on 30 January 2023 at 3:13pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – review application lodged out of time – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 347
Migration Regulations 1994 (Cth), 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 28 March 2022 to refuse to grant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The review application was lodged with the Tribunal on 2 December 2022. 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 21 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 28 March 2022 and dispatched by email to the email address he provided on the application form for communications from the Department. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The time limit to apply for review is 21 calendar days from the day on which an applicant is taken to have been notified of the primary decision. The primary decision was emailed on 28 March 2022  and, on the basis that 28 March 2022 was the date on which the applicant was taken to have been notified, the last day for lodging the application for review was 18 April 2022. The application was not received until 2 December 2022 which means it was not lodged within the time limit. Furthermore, the application fee had not been paid.

5. An officer wrote to the applicant inviting his comments on whether the application for review was valid. In response, the applicant claimed that acknowledged that his application is “long overdue from the valid application period” and explained that COVID-19 had affected him such that he “completely overlooked the consequences of missing the deadline of a valid application”. The applicant apologised and asked for a second chance. The applicant added that he had already applied for a new AFP Police Check for the review. In respect of the payment of the application fee, he sought advice as to whether he should go ahead with the payment.

6. The Tribunal has considered the applicant’s response but the time period within which an application must be made cannot be extended under any circumstances where the applicant was notified of the decision in accordance with the statutory requirements. The Tribunal is satisfied that the statutory requirements were met in this case.

7. Given this, the applicant is taken to have been notified of the decision on 28 March 2022 which means he needed to apply for review by 18 April 2022.

8. As the application for review was not received by the Tribunal until 2 December 2022, the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

9. The Tribunal does not have jurisdiction in this matter.

   Wan Shum
   Member