2109173 (Refugee)

[2021] AATA 4381

2109173 (Refugee) [2021] AATA 4381 (29 September 2021)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2109173

COUNTRY OF REFERENCE:                   China

MEMBER:Hugh Sanderson

DATE:29 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 29 September 2021 at 11:35am

CATCHWORDS
REFUGEE – protection visa – China – application for review made more than 28 days after notification of refusal – agent’s office building pulled down and agent did not receive notification – notification by email – no discretion to extend time – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth), 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 12 May 2021 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 17 July 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 12 May 2021 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The Tribunal finds that the applicant is taken to have been notified of the decision on 12 May 2021: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 8 June 2021.

5. The Tribunal wrote to the applicant on 11 August 2021 stating as follows:

   It appears that your application is not a valid application as it was not lodged within the relevant time limit. Pursuant to r.4.31(2) of the Migration Regulations 1994, the period in which an application for review of a Part 7-reviewable decision must be given to the Tribunal is 28 days, commencing on the day the applicant is notified of the decision. 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].

   The primary decision was emailed to you on 12 May 2021 meaning that 12 May 2021
   was the date on which you are taken to have been notified. In accordance with DZAFH, the last day for lodging the application for review was 6 June 2021. As the application was not received until 17 July 2021, it appears to be out of time. However, this is a matter which must be determined by a Member.

6. The applicant responded on 24 August 2021 stating as follows:

   I found I have lost my entitlement for Medicare in May. When I am not entitled for

   Medicare. I then contacted my agent about my visa application, agent told me the office building at Burwood was pulled down, and she did not receive the refusal letter from Immigration department. I felt shocked and was surprised upon learning.

   I don’t want to become illegal, and I then asked my friend and got another friend’s help on lodgment of the appeal application to AAT on 17 July, but it was out of time, later than required time limit…. I don’t know it has the consequence that I will lose my chance to have my protection case to be reviewed, and lose the opportunity to be refugee.

   I sincerely wish AAT could consider my situation and exercise on your power of discretion to accept my appeal application and grant me a chance to be presented in AAT.

7. It is the responsibility of all people holding a visa to be able to reside in Australia to provide to the Department up-to-date contact details to ensure that any correspondence the Department needs to send to them can be received by the applicant. The method the applicant advised the Department to correspond with her was by email. It is difficult to understand why if the applicant did have an agent if their office was “pulled down” this would prevent the applicant or her representative if she had one from receiving an email.

8. There is no information before the Tribunal and no claim has been made that there was any flaw in the manner the Department notified the applicant of its decision to refuse her application. The decision was sent by email to the email address provided by the applicant in her application.

9. The applicant has acknowledged that her review application has been made outside the time limits prescribed by the legislation. The applicant asks the Tribunal to use its discretion to accept her review application. The Tribunal does not have a discretion to extend the time within which an application for a review of the Department’s decision to refuse an application can be made.

10. As the application for review was not received by the Tribunal until 17 July 2021 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

    DECISION

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

    Hugh Sanderson
    Member