2009993 (Refugee)

[2020] AATA 3772

2009993 (Refugee) [2020] AATA 3772 (26 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2009993

COUNTRY OF REFERENCE:                   China

MEMBER:Wan Shum

DATE:26 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 26 August 2020 at 10:27am

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

LEGISLATION
Migration Act 1958 (Cth), ss 65
Migration Regulations 1994 (Cth), r 4.31

CASES
DZAFH v Minister for Immigration [2017] FCCA 387
Singh v MIBP [2020] FCAFC 31

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 22 May 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 15 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 22 May 2019 and dispatched by email to his authorised recipient’s email address. This email address was provided on the visa application form and the appointment of representative form given to the Department.

4. An officer of the Tribunal wrote to the applicant on 17 July 2020, advising that it appeared that his application for review was not valid as it was out of time. It was set out in the letter that he was taken to have been notified of the primary decision on 22 May 2019 because this was the date the decision had been emailed to him. This meant that the last day for lodging the application for review was 18 June 2019 and, in the officer’s opinion, his application was not valid as it was not received until 15 June 2020.

5. In the applicant’s response, the applicant explained that he had not known of the decision at the time as he had engaged [Ms A] to represent him, believing that she was a migration agent. He explained that he had found [Ms A] through an advertisement on [a mobile] app as a migration agent and he had relied on her assistant. The contact details of email address of [email address] and postal address of [postal address] were [Ms A]’s. The applicant stated that he had queried why his own contact details were not provided at the time, but that [Ms A] had said that it was better to use hers as the correspondence from the Department would be in English. The applicant then states that  in early June 2020, he was informed by his employer that his visa was not valid and he lost his job. When he tried to contact [Ms A], she did not answer his calls. He told his friends about the missing agent and the invalid visa and one of them showed him an article which referred to [Ms A]’s arrest in December 2018. The applicant added that:

   I know it is my responsibility to hold a valid visa. I apologise for my mistake, and if possible, I'd like to do anything to change my fault. Please forgive me, please.

6. The Tribunal has considered the above information. It has found an article in English published by the [newspaper] which refers to [Ms A]’s arrest at her [Suburb 1] office in December 2018.[1] The Tribunal accepts that the contact details were [Ms A]’s rather than the applicant’s but, nevertheless, those were the contact details provided for his authorised recipient with his visa application. The applicant himself confirms that he used [Ms A]’s services to make his protection visa application and that he knew her contact details were being used for receiving communications. As the decision was sent by email to the last known email address provided to the Minister for the purposes of receiving documents, the Tribunal finds that the applicant is taken to have been notified of the decision on 22 May 2019. This is regardless of whether he actually received notification of the decision on that date. The Tribunal finds that the applicant was notified of the decision in accordance with the statutory requirements, having regard to the Full Federal Court judgment of Singh v MIBP [2020] FCAFC 31.

   [1] [Source deleted]

7. Therefore, in accordance with DZAFH v Minister for Immigration [2017] FCCA 387, the prescribed period to apply for review ended on 18 June 2019.

8. As the application for review was not received by the Tribunal until 15 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

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

   Wan Shum
   Member