2100241 (Refugee)

[2021] AATA 728

2100241 (Refugee) [2021] AATA 728 (25 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2100241

COUNTRY OF REFERENCE:                   China

MEMBER:Andrew McLean Williams

DATE:25 February 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 25 February 2021 at 7:19pm

CATCHWORDS

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

LEGISLATION
Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth), Schedule 2, 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 18 November 2020 to refuse to grant a protection visa under s.65 of the Migration Act 1958 (‘the Ac’t). The review application was lodged with the Tribunal on 8 January 2021. 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 18 November 2020 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.  Accordingly, any application for review of the refusal decision was required to be lodged in the Tribunal on or before 15 December 2020.

4. A ‘natural justice’ letter was sent to the applicant by the Tribunal on 22 January 2021, inviting submissions regarding the late lodgement of the application for review.  A response was received from the applicant on 22 January 2021 acknowledging that the application for review was lodged out of time.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 18 November 2020: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 15 December 2020.

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

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

   Andrew McLean Williams
   Member