1707061 (Refugee)

[2017] AATA 3186

1707061 (Refugee) [2017] AATA 3186 (3 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1707061

COUNTRY OF REFERENCE:                  China

MEMBER:Luke Hardy

DATE:3 May 2017

PLACE OF DECISION:  Sydney

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

Statement made on 03 May 2017 at 3:58pm

CATCHWORDS
Refugee – Protection visa – China – Application out of time – No jurisdiction

LEGISLATION
Migration Act 1958, ss 36, 65, 412, 494C
Migration Regulations 1994, r 4.31

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 26 October 2016, to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 4 April 2017. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

2. Pursuant to s.412(1)(b) of the Act and r.4.31 of the Migration Regulations 1994, an application for review of this decision had to be made within 28 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 26 October 2016 and dispatched by registered post. The letter was evidently not returned unclaimed. The decision notification included a letter informing the applicant that he had up to twenty-eight calendar days commencing seven working days from the date of the decision to make a valid review application. However, the applicant did not seek review of the delegate’s decision in an application to the Tribunal dated 4 April 2017.

4. The Tribunal wrote to the applicant on 24 April 2017 to inform him that his review application appeared invalid as he would have been deemed to have been notified of the delegate’s decision on 3 November 2016, meaning that he had until 1 December 2016 to lodge a review application. In response, the applicant said:

   My protection visa was lodged on 08 January 2016. After I lodged my application, I took attention on receive result from DIBP every day, but I didn't receive anything. On 24 April, I thought it took so long to receive anything from DIBP, so I asked a friend to check my visa status, and he told me my visa was expired, then I realized that I must missed the visa application notice from DIBP. Then I lodged review on AAT immediately. I really did not receive anything from DIBP, and I did not change my address. So I really don't know what happened. Please consider the fact that I did not receive anything from DIBP was the reason why I did not lodge AAT review application on time. And give me a valid application. Thank you so much.

5. The Department evidently sent the decision to the correct address for service; meanwhile the applicant claims he did not change his address and expected to receive the delegate’s decision at the address where he was staying. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. There is no satisfactory explanation before the Tribunal as to how the decision was sent to the applicant’s correct address by registered mail and not received by the applicant on or before 3 November 2016, or as to how or why he was unable to lodge a valid review application, i.e., by 1 December 2016.

6. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 3 November 2016. Therefore the prescribed period within which the review application could be made ended on 1 December 2016.As the application for review was not received by the Tribunal until 4 April 2017 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.

   Luke Hardy
   Member