1714121 (Refugee)

[2017] AATA 3007

1714121 (Refugee) [2017] AATA 3007 (15 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1714121

COUNTRY OF REFERENCE:                  China

MEMBER:Christine Cody

DATE:15 December 2017

PLACE OF DECISION:  Sydney

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

Statement made on 15 December 2017 at 4:45pm

CATCHWORDS
Refugee – Protection visa – China – Review application out of time

LEGISLATION
Migration Act 1958, ss 65, 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. This is an application for review of a decision of a delegate of the Minister for Immigration [in] July 2013 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 1 July 2017. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. As the applicant was not in immigration detention on the day the applicant was notified of the decision, an application for review of the decision had to be made within 28 days, commencing on that day: r.4.31(2) of the Migration Regulations 1994.

3. Notification address provided to the Department: In his protection visa application form lodged [in] January 2013, the applicant provided a residential address. Thereafter, [in] March 2013, the applicant provided a “Change of address and/or passport details form”, in which he provided new contact details, namely his address for correspondence, as a PO Box address. In response to the question as to whether he agreed with the Department communicating with him by email, he said no. The Tribunal is satisfied that the applicant intended all correspondence to be sent to his PO Box address as informed to the Department [in] March 2013.

4. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated [a date in] July 2013 and dispatched by post to his PO Box address. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. The Tribunal notes that the Departmental file indicated that the notification letter was returned to the Department. However, as the notification letter was sent to the applicant’s address for service in accordance with the statutory requirements, the Tribunal finds that the applicant is taken to have been notified of the decision on [a date in] July 2013: s.494C of the Act.

6. Therefore the prescribed period to apply for review ended on [a date in] August 2013. However, the application for review until almost 4 years later, on 1 July 2017.

7. The Tribunal sent the applicant a letter on 3 November 2017, noting that it appeared that he was out of time in lodging his application for review, and asking whether he sought to make any comments on whether a valid application has been made, by 28 November 2017.

8. The Tribunal did not receive any response to that letter.

9. The Tribunal finds that, as the application for review was not received by the Tribunal until 1 July 2017 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

    Christine Cody
    Member