2015447 (Refugee)

[2021] AATA 177

2015447 (Refugee) [2021] AATA 177 (14 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2015447

COUNTRY OF REFERENCE:                   China

MEMBER:Denise Connolly

DATE:14 January 2021

PLACE OF DECISION:  Sydney

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

Statement made on 14 January 2021 at 6:47am

CATCHWORDS

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

LEGISLATION

Migration Act 1958 (Cth), ss 65, 66, 494
Migration Regulations 1994 (Cth), r 4.31

CASES

DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64

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 dependants.

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 16 September 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 18 October 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 16 September 2020 and dispatched by email.  The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements of ss.494B and 494C of the Act (which deal with notification by email), and that it complied with s.66(2) of the Act, as it specified the criterion / provision upon which the visa was refused, gave written reasons, specified that the decision was reviewable by the Tribunal, the time in which the review application had to be lodged, who could apply for review, and where the review application could be made. The Tribunal is satisfied that this information was set out sufficiently clearly, as required by DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64.

4. The Tribunal formed the preliminary view the review application was lodged out of time. It wrote to the applicant on 20 October 2020 seeking his comments. The applicant did not respond.

5. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 16 September 2020 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 16 September 2020: s.494C of the Act. Therefore the prescribed period to apply for review ended on 13 October 2020.

7. As the application for review was not received by the Tribunal until 18 October 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.

   Denise Connolly
   Member