2112329 (Refugee)

[2022] AATA 193

2112329 (Refugee) [2022] AATA 193 (5 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2112329

COUNTRY OF REFERENCE:                   China

MEMBER:Brendan Darcy

DATE:5 January 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 5 January 2022 at 9:36am

CATCHWORDS
REFUGEE – protection visa – China – application made 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 Home Affairs on 26 November 2020 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 14 September 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: reg 4.31(2) of the Migration Regulations 1994 (Cth) (the Regulations). 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. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 26 November 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 27 September 2021, the Tribunal emailed a letter to the applicant inviting him to comment on whether the application for review was valid as it appeared not to have been lodged within the relevant time limit, and to do so by 11 October 2021.

5. The Tribunal did not receive any submission regarding the validity of the application for review, either from the applicant or on the applicant’s behalf, right up until the time of making this decision.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 26 November 2020: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 23 December 2020.

7. As the application for review was not received by the Tribunal until 14 September 2021 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Brendan Darcy
   Member