2009288 (Refugee)

[2020] AATA 3434

2009288 (Refugee) [2020] AATA 3434 (14 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2009288

COUNTRY OF REFERENCE:                   China

MEMBER:Sean Baker

DATE:14 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 14 August 2020 at 2.47pm

CATCHWORDS
REFUGEE – protection visa – China – review application made out of time – statutory requirements for notification of decision – No jurisdiction

LEGISLATION
Acts Interpretation Act 1901 (Cth), s 36
Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth), r 4.31

CASES
Huang v MIAC [2011] FMCA 271

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 24 February 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 3 June 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 24 February 2020 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 setting out the preliminary view that it appeared the application was out of time.

5. in his statutory declaration in response, the applicant claims that he was introduced to [Ms A] who introduced herself as an agent who he paid for assistance and she lodged his application form for him. He attended his biometrics interview but then never heard from his agent again. He discovered his application had been refused only on checking VEVO. He tried to look for his agent at her offices but she was not there, the neighbours said the office had been shut down by the Federal police in 2018. He then lodged his review application late. He states it was out of his control that his review application was lodged late. In the email accompanying the statutory declaration, the applicant’s agent notes that [Ms A] cannot be found as a registered or sanctioned agent on the OMARA website.

6. The information before the Tribunal is that the applicant nominated [Ms A] as his authorised recipient. This is not dependent on whether she was an agent or only held herself out as such. Having done so, therefore the Department correctly notified [Ms A], rather than the applicant, of the refusal of his protection application: Huang v MIAC [2011] FMCA 271.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 24 February 2020: s.494C of the Act. Therefore the prescribed period to apply for review ended on 22 March 2020.

8. As the last day of the prescribed period fell on a Sunday, the applicant had until the end of the next day that was not a Saturday, a Sunday or a holiday to lodge his or her application, i.e. until 23 March 2020: s.36(2) of the Acts Interpretation Act 1901.

9. As the application for review was not received by the Tribunal until 3 June 2020 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

    Sean Baker
    Member