Alramadhan (Migration)

Case [2023] AATA 3178

Alramadhan (Migration) [2023] AATA 3178 (13 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Amal Abdullah Ali Alramadhan

CASE NUMBER:  2308963

HOME AFFAIRS REFERENCE(S):          BCC2023/1468126 PNJ BCC2023/1468126

MEMBER:Alan McMurran

DATE:13 September 2023

PLACE OF DECISION:  Sydney

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

Statement made on 13 September 2023 at 5:24pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – application for review lodged out of time – No jurisdiction

LEGISLATION
Acts Interpretation Act 1901 (Cth), s 36
Migration Act 1958 (Cth), ss 65, 347, 494C
Migration Regulations 1994 (Cth), r 4.10

CASES
Beni v Minister for Immigration and Border Protection [2018] FCAFC 228

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 14 May 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 21 June 2023.

  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. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

    Consideration

  4. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 14 May 2023 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

  5. On 10 July 2023, the Tribunal sent a natural justice letter to the applicant. It contained particulars that the application was not lodged within the 21-day time limit, which expired on 4 June 2023, being the last day for lodgement of the application. The application was not lodged until 21 June 2023 and it appears to be out of time. The applicant was invited to respond in writing by 24 July 2023. The applicant did not respond to the invitation in the letter.

  6. The applicant had already, however, made a compassionate submission by email on 22 June 2023, with multiple attachments. They included a health professional report and supporting statements from a friend and work colleague attesting to the applicant’s health conditions and concerns for her mental well-being. A health report submitted states the applicant has a condition described as ADHD. The applicant was seeking an extension of time sought after the time for lodgement had already expired.

  7. The Tribunal has considered the available information. The Tribunal has no discretion in the Migration and Refugee Division of the Tribunal to waive the mandated 21-day time limit for lodgement of an application for review, or to extend time for lodgment for the reasons requested, or at all.

  8. The issue was extensively considered in Beni v Minister for Immigration and Border Protection [2018] FCAFC 228, which found that “the Act exhaustively stipulates specific time limits for all relevant actions to which matters in the Division relate. That, as indicated above, has been deemed essential by the legislature so as to achieve certainty in this very high volume area of administrative decision-making”.[1]

    [1] At [63] per Thawley J

  9. The Tribunal finds that the applicant is taken to have been notified of the decision on 14 May 2023: s 494C of the Act. Therefore the prescribed period to apply for review ended on 4 June 2023.

  10. As the last day of the prescribed period fell on a Sunday, the applicant had until the end of the next day that was not a Saturday, a Sunday or a holiday to lodge his or her application, i.e. until 5 June 2023: s 36(2) of the Acts Interpretation Act 1901 (Cth).

  11. As the application for review was not received by the Tribunal until 21 June 2023 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

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

    Alan McMurran
    Member



Details
AGLC
Alramadhan (Migration) [2023] AATA 3178
Case
[2023] AATA 3178
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for review lodged by the applicant, Mr. Alramadhan, concerning a Student (Temporary) (Class TU) visa, Subclass 500. The central dispute revolved around whether the Tribunal had jurisdiction to hear the applicant's case, given that the application for review was lodged after the statutory time limit had expired.

The primary legal issue before the Tribunal was whether it possessed the authority to extend the time for lodging an application for review when the application was made outside the prescribed 21-day period. The Tribunal was required to determine if it had any discretion to waive or extend this time limit, particularly in light of the applicant's submissions regarding health conditions.

The Tribunal reasoned that it had no discretion to waive or extend the mandated 21-day time limit for lodging an application for review. This conclusion was informed by the decision in *Beni v Minister for Immigration and Border Protection* [2018] FCAFC 228, which established that the relevant legislation exhaustively stipulates time limits for actions within the Migration and Refugee Division to ensure certainty in a high-volume area. The Tribunal found that the applicant was notified of the decision on 14 May 2023, meaning the 21-day period expired on 4 June 2023. As this date was a Sunday, the applicant had until 5 June 2023 to lodge the application. Since the application was not received until 21 June 2023, it was out of time.

Consequently, the Tribunal determined that it did not have jurisdiction to review the decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As the application for review was not received by the Tribunal until 21 June 2023 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 The Tribunal does not have jurisdiction in this matter.Alan McMurranMember

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.Consideration The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 14 May 2023 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. On 10 July 2023, the Tribunal sent a natural justice letter to the applicant. It contained particulars that the application was not lodged within the 21-day time limit, which expired on 4 June 2023, being the last day for lodgement of the application. The application was not lodged until 21 June 2023 and it appears to be out of time. The applicant was invited to respond in writing by 24 July 2023. The applicant did not respond to the invitation in the letter. The applicant had already, however, made a compassionate submission by email on 22 June 2023, with multiple attachments. They included a health professional report and supporting statements from a friend and work colleague attesting to the applicant’s health conditions and concerns for her mental well-being. A health report submitted states the applicant has a condition described as ADHD. The applicant was seeking an extension of time sought after the time for lodgement had already expired. The Tribunal has considered the available information. The Tribunal has no discretion in the Migration and Refugee Division of the Tribunal to waive the mandated 21-day time limit for lodgement of an application for review, or to extend time for lodgment for the reasons requested, or at all. The issue was extensively considered in Beni v Minister for Immigration and Border Protection [2018] FCAFC 228, which found that “the Act exhaustively stipulates specific time limits for all relevant actions to which matters in the Division relate. That, as indicated above, has been deemed essential by the legislature so as to achieve certainty in this very high volume area of administrative decision-making”.[1][1] At [63] per Thawley J The Tribunal finds that the applicant is taken to have been notified of the decision on 14 May 2023: s 494C of the Act. Therefore the prescribed period to apply for review ended on 4 June 2023. As the last day of the prescribed period fell on a Sunday, the applicant had until the end of the next day that was not a Saturday, a Sunday or a holiday to lodge his or her application, i.e. until 5 June 2023: s 36(2) of the Acts Interpretation Act 1901 (Cth). As the application for review was not received by the Tribunal until 21 June 2023 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 The Tribunal does not have jurisdiction in this matter.Alan McMurranMember