2015518 (Refugee)

[2021] AATA 178

2015518 (Refugee) [2021] AATA 178 (19 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2015518

COUNTRY OF REFERENCE:                   China

MEMBER:Moira Brophy

DATE:19 January 2021

PLACE OF DECISION:  Sydney

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

Statement made on 19 January 2021 at 1:42pm

CATCHWORDS
REFUGEE – protection visa – China – application made out of time – no jurisdiction

LEGISLATION
Acts Interpretation Act 1901 (Cth), s 36
Migration Act 1958 (Cth), ss 65, 66, 494B, 494C
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 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 8 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 19 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 8 September 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 has considered the notification letter and is satisfied that the applicant was notified of the decision in accordance with the statutory requirements of ss.494B and 494C of the Act 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.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 8 September 2020: s.494C of the Act. Therefore the prescribed period to apply for review ended on 5 October 2020.

6. As the last day of the prescribed period fell on a holiday, 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 6 October 2020: s.36(2) of the Acts Interpretation Act 1901.

7. The Tribunal wrote to the applicant on 22 October 2020 seeking her comments on its preliminary view that it does not have jurisdiction because the review application was lodged out of time. The applicant did not respond.

8. As the application for review was not received by the Tribunal until 19 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

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

   Moira Brophy
   Member