2016219 (Refugee)

[2021] AATA 634

2016219 (Refugee) [2021] AATA 634 (20 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2016219

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Russell Matheson

DATE:20 January 2021

PLACE OF DECISION:  Sydney

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

Statement made on 20 January 2021 at 5:12pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 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 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 20 May 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 4 November 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 20 May 2020 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. The Tribunal notes the applicant was included (the second applicant) in the primary application and notification and decision for refusal on 20 May 2020.

4. On 6 January 2021 a natural justice letter was sent to the applicant with an invitation to comment on the validity of the application for review by 20 January 2021. The applicant responded on 11 January 2021. The applicant provided their own statutory declaration and written submission from their own agent. The applicant states that they were not informed of the decision by the primary applicant and the migration agent [named] (the authorised recipient) authorised by the first person to receive documents in connection with specified matters arising in the Act or Regulations. The applicant further states that they were informed of the decision three weeks after the date of the decision. That the main applicant refused to apply for a review of the decision, and they tried to persuade the main applicant to lodge a review of the decision without success. The applicant states that the migration agent [named] was only acting on behalf of the main applicant and was not their authorised recipient at the time of decision. Also, he only realised he could lodge an application for review himself in November 2020. The applicant claims the cause in delay was beyond his control and requested the Tribunal to consider their special circumstances and grant an extension of time. The Tribunal is sympathetic to the applicant’s circumstances as outlined above.  However, the Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 20 May 2020 in accordance with s.494C of the Act. Therefore, the prescribed period to apply for review ended on 16 June 2020.

6. As the application for review was not received by the Tribunal until 4 November 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