Lier (Migration) [2018] AATA 832 (2 March 2018)

Last Updated: 11 April 2018

Lier (Migration) [2018] AATA 832 (2 March 2018)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Ms Inn Lee Lier

CASE NUMBER: 1803443

DIBP REFERENCE(S): BCC2017/2937379

MEMBER: Mr S Norman

DATE: 2 March 2018

PLACE OF DECISION: Sydney

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

Statement made on 02 March 2018 at 3:45pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Application not received in required timeframe

LEGISLATION
Migration Act 1958, s 347(1)(b)
Migration Regulations 1994, rr 2.55, 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 Immigration on 25 October 2017 to cancel the applicant’s Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 9 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 7 working 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 25 October 2017 and dispatched by post. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
4. By letter of 15 February 2018, the Tribunal advised the applicant that it appeared her merits review application was not lodged within the relevant timeframe. By submission from her migration agent dated 1 March 2018 (and from prior submissions), it was claimed the applicant was not aware her visa had been cancelled; this was due to the negligence of her former agent; the applicant only discovered that her visa had been cancelled after she attempted to enrol in a course (evidence attached). The agent then said that the applicant’s “actual email address is not the one of her visa grant letter, which she claimed could only be accessed by her agent”. However, there was no claim the Department decision to cancel the applicant’s Student visa was sent otherwise than to the applicant’s authorised address for service.
5. That being said, the Tribunal finds that the applicant is taken to have been notified of the decision on 3 November 2017: r.2.55 of the Regulations. Therefore the prescribed period to apply for review ended on 14 November 2017.
6. As the application for review was not received by the Tribunal until 9 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

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

Mr S Norman
Member