2113708 (Refugee)

[2022] AATA 561

2113708 (Refugee) [2022] AATA 561 (28 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2113708

COUNTRY OF REFERENCE:                   China

MEMBER:Alison Murphy

DATE:28 February 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 28 January 2022 at 2:23pm

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, ss 65, 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 8 September 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 7 October 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).

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 8 September 2021 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 8 October 2021 the Tribunal wrote to the applicant, advising her that it appeared the application for review was lodged out of time and inviting her comments on whether a valid application for review had been made. On the same date the applicant responded to the Tribunal’s letter, explaining that the email address she had used for her correspondence with the Department had been blocked and she did not receive the notice. She asked that her application be accepted.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 8 September 2021: s 494C of the Act. Therefore the prescribed period to apply for review ended on 5 October 2021.

6. As the application for review was not received by the Tribunal until 7 October 2021 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter. The Tribunal notes the explanation provided by the applicant as to the reason for the late application, but the Tribunal has no power to extend time to make the application.

   DECISION

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

   Alison Murphy
   Member