2101003 (Refugee)

[2021] AATA 841

2101003 (Refugee) [2021] AATA 841 (3 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2101003

COUNTRY OF REFERENCE:                   China

MEMBER:Brendan Darcy

DATE:3 March 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 03 March 2021 at 12:53pm

CATCHWORDS
REFUGEE – protection visa – China – applicant was notified of the decision in accordance with the statutory requirements– application lodged out of time – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth), r 4.31

CASES

DZAFH v Minister for Immigration [2017] FCCA 387

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 12 August 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 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. In DZAFH v Minister for Immigration [2017] FCCA 387, the Federal Circuit Court held that the prescribed period in r.4.31 commences on, and includes, the day the applicant is taken to have been notified of the decision: at [44] – [46].

3. On 12 February 2021, the Tribunal invited the applicant to comment on the validity of the application for review, and to do so by 26 February 2021. On 12 February 2021, the Tribunal received written comment from the applicant. In summary, the applicant made the following claims:

   ·The applicant was not made aware that her visa expired by his agent;

   ·When he contacted the agent, no one picked up the phone and the agent had created a separate email account for his or her work, providing her no access for communication to the agent;

   ·When the applicant checked her visa status, he discovered the refusal letter was sent to the agent’s email;

   ·The applicant had no idea about what had happened during the time;

   ·Once the applicant had known the situation, he lodged a review application on 29 January 2021;

   ·The applicant is sorry for the late review applicant and hopes another opportunity is provided.

4. The Tribunal has examined the applicant’s 866B and 866C forms which was submitted as part of his protection visa application on 17 November 2017.

5. Question 5 stated the applicant did not receive any assistance in completing the form. Question 9 states that all written communication about this application should be sent to the applicant himself. No registered migration agent or lawyer was nominated as a representative or an authorised representative at anytime this application was being assessed by the Department. Furthermore, the applicant provided the same email address as the one he did to the Tribunal in his answer to Question 37 and 38 in form 866C.

6. In the light of this information which undermines the credibility of the applicant’s written comment, the Tribunal places no weight on the applicant’s reasons outlined about the validity of the review application as being credible or relevant.

7. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 12 August 2020 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

8. The Tribunal finds that the applicant is taken to have been notified of the decision on 12 August 2020: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 8 September 2020.

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

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

    Brendan Darcy
    Member