1922551 (Refugee) - [2020] AATA 3081

1922551 (Refugee) [2020] AATA 3081 (1 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1922551
COUNTRY OF REFERENCE:                   China
MEMBER:Brendan Darcy
DATE:1 April 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 01 April 2020 at 12:54pm
CATCHWORDS
REFUGEE – protection visa – China – review application lodged out of time – departmental notification issued in accordance with legislation – no jurisdiction
LEGISLATION
Migration Act 1958, ss 65, 494C, 66(2)(d)(ii)
Migration Regulations 1994, Schedule 2, r 4.31(2)
CASES
BMY18 v MHA [2019] FCAFC 189
DZAFH v Minister for Immigration [2017] FCCA 387
DFQ17 v MIBP [2019] FCAFC 64
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

This is an application for review of a decision of a delegate of the Minister for Immigration on 12 July 2019 to refuse to grant protection visas under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 14 August 2019. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
As the applicants was 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.
The material before the Tribunal indicates that the applicants were notified of the decision by letter dated 17 July 2019 and dispatched by email. The Tribunal is satisfied that the applicants were notified of the decision in accordance with the statutory requirements.
On 19 December 2019, the Tribunal emailed the applicants to invite comment on the validity of this review application and to do so, in writing, by 2 January 2020. On 2 January 2020, the first named applicant requested an extension of time to respond to the invitation to comment. This was granted up to and including 29 January 2020.
In an email dated 29 January 2020, the applicants responded. The applicants claimed that there were three reasons that the applicants had validly applied for review.
First, the applicants claimed the phrasing ‘at the end of the day’ contained in the notification letter was defective as it was unclear on which day the letter was considered received.
Second, the applicants claimed the notification letter with the decision record attached did not fulfil the obligations under s.66 of the Migration Act which requires the delegate to provide the time in which the application for review may be made. As the notification letter failed to do so, it was defective.
Third, the applicants noted the authority of DZAFH v Minister (referred to in the letter inviting the applicants to comment)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] AATA 3081
Decision Date: 1 April 2020

CaseChat Overview and Summary

The applicant, a citizen of China, sought review of a decision by the Department of Home Affairs concerning a protection visa. The Administrative Appeals Tribunal (AAT) was asked to consider whether it had jurisdiction to hear the applicant's review application, which was lodged after the prescribed time limit.

The central legal issue before the Tribunal was whether the applicant's review application had been made in accordance with the relevant legislative provisions, specifically concerning the timeframes for lodging such applications. The Tribunal was required to determine if the late lodgement of the application deprived it of jurisdiction.

The Tribunal found that the application for review was not received by the Tribunal until 14 August 2019. As this date was outside the timeframe stipulated by the relevant legislation for lodging an application for review, the Tribunal concluded that the application was not made in accordance with the law. Consequently, the Tribunal determined that it lacked jurisdiction to consider the merits of the applicant's case.

The Tribunal ordered that it does not have jurisdiction in this matter.

Orders

Orders of the court

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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 14 August 2019 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.Brendan DarcyMember

Ratio Decidendi

Legal Principle Established

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