2010212 (Refugee)

[2020] AATA 6197

2010212 (Refugee) [2020] AATA 6197 (30 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2010212

COUNTRY OF REFERENCE:                   China

MEMBER:Gabrielle Cullen

DATE:30 November 2020

PLACE OF DECISION:  Sydney

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

Statement made on 30 November 2020 at 2:08pm

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

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

CASES

DZAFH v Minister for Immigration (2017) FCCA 387

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 15 April 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 18 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 15 April 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 a natural justice letter to the applicant on 19 June 2020, conveying its preliminary view that the application for review appeared to be invalid because it was not lodged within the relevant time limit. The Tribunal indicated that the primary decision was emailed to the applicant on 15 April 2019 and in accordance with DZAFH v Minister for Immigration (2017) FCCA 387 the last day for lodging the review was 6 May 2019. The letter noted the application for review was not received until 18 June 2020 and it appeared to be out of time. The Tribunal invited the applicant to submit any comments by 3 July 2020.

5. On 25 July 2020 the applicant provided the following response.

   I did not receive the notification from the department.

   It was until last month only I realize my visa is not in place, then only I find out that I had missed out the appeal period.

   To add on, I was unable to log on to the previous email which cause me not receiving any notification from the department.

6. The Tribunal has considered the applicant’s response, however, finds that the applicant is taken to have been notified of the decision on 15 April 2020. Therefore, the prescribed period to apply for review ended on 6 May 2020. As the application for review was not received by the Tribunal until 18 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

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

   Gabrielle Cullen
   Member