2008902 (Refugee)

[2020] AATA 3704

2008902 (Refugee) [2020] AATA 3704 (3 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2008902

COUNTRY OF REFERENCE:                   China

MEMBER:Wendy Banfield

DATE:3 July 2020

PLACE OF DECISION:  Sydney

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

Statement made on 03 July 2020 at 5:03pm

CATCHWORDS
REFUGEE – protection visa – China – review application lodged out of time – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 494C

Migration Regulations 1994, Schedule 2, 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 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 on 6 March 2020 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 27 May 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 6 March 2020 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 4 June 2020 the Tribunal wrote to the applicant inviting him to comment on the validity of the application for review. On 10 June 2020 the applicant responded to the information. It was submitted the applicant thought that because of COVID-19 the Department would be closed and he would not receive any notifications. He advised: I am facing difficulties on my monetary issue, so that I have limited access on internet, so I have missed out the email received. I found the refusal notification email was sent out by Mar then I had applied in AAT immediately. I know that was late to do appeal in AAT.

5. The response to the invitation to comment has been considered, however, once the applicant is properly notified of the decision, the Tribunal does not have discretion in the matter. 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.

6. As the application for review was not received by the Tribunal until 27 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

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

   Wendy Banfield
   Member