2100061 (Refugee)

[2021] AATA 686

2100061 (Refugee) [2021] AATA 686 (23 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2100061

COUNTRY OF REFERENCE:                   China

MEMBER:Luke Hardy

DATE:23 February 2021

PLACE OF DECISION:  Sydney

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

Statement made on 23 February 2021 at 10:43am

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 494C
Migration Regulations 1994, rr 2.55, 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 25 September 2020 to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 1 January 2021.

3. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

4. 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.

5. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 25 September 2020 and dispatched by email. Therefore the prescribed period to apply for review would have ended on 22 October 2020.

6. The Tribunal wrote to the applicant by email on 29 January 2021 to advise of the jurisdictional issue and to invite him to comment by 12 February 2021 on whether a valid review application had been made. The Tribunal received no reply.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 25 September 2020 r.2.55 of the Regulations. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. The prescribed period to apply for review did end on 22 October 2020.

8. As the application for review was not received by the Tribunal until 1 January 2021 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.

   Luke Hardy
   Member