2016031 (Refugee)

[2021] AATA 159

2016031 (Refugee) [2021] AATA 159 (27 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2016031

COUNTRY OF REFERENCE:                   China

MEMBER:Russell Matheson

DATE:27 January 2021

PLACE OF DECISION:  Sydney

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

Statement made on 27 January 2021 at 2:54pm

CATCHWORDS
REFUGEE – protection visa – China – application for review made out of time – notification in accordance with statutory requirements – applicant self-quarantining with symptoms of COVID-19 and overlooked emails – no substantiating evidence – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 65, 494

Migration Regulations 1994 (Cth), r 4.31(2)

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 25 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 29 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 25 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. On 7 December 2020 a natural justice letter was sent to the applicant with an invitation to comment on the validity of the application for review in writing by 21 December 2020. On 21 December the Tribunal received a written response from the applicant. The applicant submits that he had the symptoms of Covid-19 and self-quarantined. He further states during that time he overlooked the emails sent to him from the Department and after recovering he noticed he was out of time. Additionally, the applicant asked the Tribunal to forgive his mistake.  There is no additional evidence before the Tribunal that supports or substantiates that the applicant had contacted Covid-19 or that he was hospitalised for treatment preventing him from lodging within the relevant time limit.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 25 September 2020 in accordance with s.494 of the Act. Therefore, the prescribed period to apply for review ended on 22 October 2020.

6. As the application for review was not received by the Tribunal until 29 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

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

   Russell Matheson
   Member