2113808 (Refugee)

[2022] AATA 601

2113808 (Refugee) [2022] AATA 601 (24 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2113808

COUNTRY OF REFERENCE:                   China

MEMBER:Meredith Jackson

DATE:24 January 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 24 January 2022 at 11:06am

CATCHWORDS
REFUGEE – protection visa – China – review application 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 11 September 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 8 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 11 September 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 8 October 2021 the applicant lodged an application for review of the decision. On 14 October 2021 the Tribunal sent a Natural Justice letter to the review applicant concerning the application. The letter stated that the prescribed period to apply for review had ended on 8 October 2020. On 12 November 2021 the applicant’s representative responded to the Tribunal, stating that he was instructed to provide information that that the applicant only found out in August 2021 that his visa had expired and that his former migration agent had failed to advise him of the expiry. The applicant sought reinstatement of his application for review.

5. The Tribunal has carefully considered the applicant’s submission. The Tribunal finds that the applicant is taken to have been notified of the decision on 11 September 2020 under s 494C of the Act. Therefore the prescribed period to apply for review ended on 8 October 2020.

6. As the application for review was not received by the Tribunal until 8 October 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.

   Meredith Jackson
   Member