2102348 (Refugee)

[2021] AATA 2928

2102348 (Refugee) [2021] AATA 2928 (23 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2102348

COUNTRY OF REFERENCE:                   China

MEMBER:Alison Murphy

DATE:23 June 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 23 June 2021 at 2:50pm

CATCHWORDS
REFUGEE – protection visa – China – applicant notified of decision according to statutory requirements – application lodged out of time – no response to tribunal communication – no jurisdiction

LEGISLATION
Acts Interpretation Act 1901, s 36(2)
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 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 26 October 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 26 February 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 26 October 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 25 May 2021, a Tribunal officer wrote to the applicant advising that it appeared the review application was not a valid application as it was not lodged within the relevant time limit.  The applicant was invited to comment on whether a valid application had been made by 8 June 2021. As at the date of the Tribunal’s decision, the applicant has not responded to that letter.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 26 October 2020: s.494C of the Act. Therefore the prescribed period to apply for review ended on 22 November 2020. As the last day of the prescribed period fell on a Sunday, the applicant had until the end of the next day that was not a Saturday, a Sunday or a holiday to lodge his or her application, i.e. until 23 November 2020: s.36(2) of the Acts Interpretation Act 1901.

6. As the application for review was not received by the Tribunal until 26 February 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.

   Alison Murphy
   Member