2010974 (Refugee)

[2022] AATA 5162

2010974 (Refugee) [2022] AATA 5162 (27 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Chang Liu

CASE NUMBER:  2010974

COUNTRY OF REFERENCE:                   China

MEMBER:Wayne Pennell

DATE:27 December 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 27 December 2022 at 9:54am

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 412, 494C
Migration Regulations 1994, r 4.31

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 Home Affairs on 4 June 2019 to refuse to grant a protection visa to the applicant under section 65 of the Migration Act 1958 (Cth) (‘the Act’). The applicant’s review application was lodged with the Tribunal on 1 July 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.[1]

   [1]Migration Act 1958 (Cth), s 412(1)(b); Migration Regulations 1994 (Cth), r 4.31(2).

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 4 June 2019 and dispatched by email.  The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. By way of a letter dated 8 December 2022 and dispatched by email, the Tribunal advised the applicant that his application for a review of the delegate’s decision was not valid as it was not lodged within the relevant time limit.  The applicant was also advised that pursuant to regulation 4.31(2) of the Migration Regulations 1994 (Cth) (‘the Regulations’), the period in which an application for review of a reviewable decision must be given to the Tribunal is 28 days, commencing on the day the applicant is notified of the decision.[2] 

   [2]Reviewable decision pursuant to Migration Act 1958 (Cth) – Part 7.

5. The Tribunal confirmed that the primary decision was emailed to the applicant on 4 June 2019, and as this was the date on which the applicant was taken to have been notified of the primary decision.  As a result, the last day for lodging the application for review was 1 July 2019.  The Tribunal confirmed that the applicant’s application for a review of the delegate’s primary decision was not received by the Tribunal until 1 July 2020 and as such appeared to be out of time.

6. By way of a letter dated 8 December 2022 and dispatched by email, the Tribunal invited the applicant to make any comment in writing by 22 December 2022 as to whether a valid application has been made.  The applicant did not respond to the Tribunal’s invitation. 

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 4 June 2019.  Therefore, the prescribed period to apply for review ended on 1 July 2019.  As the application for review was not received by the Tribunal until 1 July 2020, the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Wayne Pennell
   Senior Member