2007921 (Refugee)

[2020] AATA 2067

2007921 (Refugee) [2020] AATA 2067 (9 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2007921

COUNTRY OF REFERENCE:                   China

MEMBER:Justine Clarke

DATE:9 June 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 9 June 2020 at 5:40pm

CATCHWORDS

REFUGEE – protection visa – China – application for review lodged out of time – difficulty calculating application deadline from department’s letter – no response to tribunal’s communication – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 65, 66(2)(d)(ii), 494C   

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

CASE

DFQ17 v Minister of Immigration and Border Protection [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

1. On 6 May 2020, the applicant lodged an application with the Tribunal for the review of a decision of a delegate of the Minister for Immigration made on 6 March 2020 to refuse to grant the applicant a protection visa 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 applicant was not in immigration detention on the day the applicant was notified of the primary 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. On 6 May 2020, when lodging the application for review, the applicant included an undated, unsigned statement which relevantly stated:

   I can’t speak English. And I can’t read documents very well.what’s more my calculation ability is very poor. I can’t calculate the time on the rejection letter,by using that (complex) formula,I don’t know which day is the deadline, so I missed the appeal time. I hope you can help me handle my case. [lack of spacing in the original]

5. The statement appears to suggest that the notification letter was affected by the type of error identified in DFQ17 v Minister of Immigration and Border Protection [2019] FCAFC 64 and that is why the application for review was lodged late.

6. The Tribunal notes that the applicant lodged the application for review two months after receiving the Department’s decision notification letter.

7. The Tribunal has reviewed the letter sent to the applicant notifying him of the delegate’s refusal decision. It was sent on 6 March 2020 by email. Under the section headed ‘Review Rights’, the letter relevantly stated:

   An application for merits review of this decision must be given to the AAT within the period of 28 calendar days, commencing on the day you are taken to have received this letter.

   As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.

   The time mentioned above in which you may apply to the AAT for merits review of this decision is prescribed by law and cannot be extended.   

8. The Tribunal considers that the structure used in this notification letter differs from and is distinguishable from that used by the Department in the case the subject of DFQ17. The Tribunal finds that the letter dated 6 March 2020, which was dispatched by email, clearly conveyed the mandatory information and complied with the requirements of s.66(2)(d)(ii) of the Act. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

9. On 12 May 2020, the Tribunal sent a letter by email to the applicant inviting them to comment on the validity of the application for review. The letter requested any comments to be provided in writing by 26 May 2020. To date, the Tribunal has not received a response.

10. The Tribunal finds that the applicant is taken to have been notified of the decision on 6 March 2020: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 2 April 2020.

11. As the application for review was not received by the Tribunal until 6 May 2020, the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

    DECISION

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

    Justine Clarke
    Member