2000839 (Refugee)

[2020] AATA 1269

2000839 (Refugee) [2020] AATA 1269 (21 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2000839

COUNTRY OF REFERENCE:                   China

MEMBER:Ann Duffield

DATE:21 April 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 21 April 2020 at 11.04am

CATCHWORDS

REFUGEE – protection visa – China – application for review submitted out of time – applicant didn’t check emails and agent didn’t give password on time – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 65, 494C

Migration Regulations 1994 (Cth), r 4.31(2)

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 dependants.

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 on 13 December 2019 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 17 January 2020. 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. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 13 December 2019 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The Tribunal wrote to the applicant on 5 February 2020 seeking his comments on its assessment that his application was lodged outside the statutory timeframes and was therefore invalid. The applicant responded on 26 March 2020 stating that he did not check his emails and his agent didn’t give him his password on time. He accepted that he lodged the application on 17 January 2020.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 13 December 2019: s.494C of the Act. Therefore the prescribed period to apply for review ended on 9 January 2020.

6. As the application for review was not received by the Tribunal until 17 January 2020 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.

   Ann Duffield
   Senior Member