2110533 (Refugee)

[2022] AATA 174

2110533 (Refugee) [2022] AATA 174 (17 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2110533

COUNTRY OF REFERENCE:                   China

MEMBER:James Silva

DATE:17 January 2022

PLACE OF DECISION:  Sydney

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

Statement made on 17 January 2022 at 2:17pm

CATCHWORDS
REFUGEE – protection visa – China – review application out of time – No jurisdiction

LEGISLATION
Migration Act 1958, ss 65, 66, 494C
Migration Regulations 1994, r 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 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 Home Affairs on 15 January 2021 to refuse to grant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The review application was lodged with the Tribunal on 15 August 2021. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 15 January 2021 and sent by email. The letter set out the information required to determine the time period to make a review, under the heading ‘Review Rights’, and the Tribunal finds that this complied with s.66(2)(d)(ii). The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

3. The Tribunal finds that the applicant is taken to have been notified of the decision on 15 January 2021: s.494C of the Act.

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. Therefore, the prescribed period to apply for review ended on 11 February 2021.

5. The Tribunal wrote to the applicant on 15 September 2021, inviting comments on the validity of the application, as it appeared not to have been lodged within the prescribed period. There was no acknowledgement or reply.

6. As the application for review was not received by the Tribunal until 15 August 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.

   James Silva
   Member