1921049 (Refugee)

[2021] AATA 1148

1921049 (Refugee) [2021] AATA 1148 (14 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1921049

COUNTRY OF REFERENCE:                   China

MEMBER:Justine Clarke

DATE:14 April 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 14 April 2021 at 3:05pm

CATCHWORDS
REFUGEE – protection visa – China – applicant was notified of the decision in accordance with the statutory requirements – application lodged out of time – no jurisdiction

LEGISLATION
Acts Interpretation Act 1901 (Cth), s 36
Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth), 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. On 31 July 2019, the applicants lodged an application with the Tribunal for the review of a decision of a delegate of the Minister for Immigration made on 24 June 2019 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

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

3. As the applicants were not in immigration detention on the day the applicants were 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.

4. The material before the Tribunal indicates that the applicants were notified of the decision by letter dated 24 June 2019 and dispatched by email. The Tribunal is satisfied that the applicants were notified of the decision in accordance with the statutory requirements.

5. On 2 September 2019, the Tribunal sent a letter by email to the applicants inviting them to comment on the validity of the review. The letter requested any comments to be provided in writing by 16 September 2019. To date, the Tribunal has not received a response.

6. The Tribunal finds that the applicants are taken to have been notified of the decision on 24 June 2019: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 21 July 2019. As the last day of the prescribed period fell on a Sunday, the applicants had until the end of the next day that was not a Saturday, a Sunday or a holiday to lodge their application, i.e. until 22 July 2019: s.36(2) of the Acts Interpretation Act 1901. As the application for review was not received by the Tribunal until 31 July 2019, 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.

   Justine Clarke
   Member