2120273 (Refugee)

[2022] AATA 1742

2120273 (Refugee) [2022] AATA 1742 (22 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2120273

COUNTRY OF REFERENCE:                   China

MEMBER:Nicole Burns

DATE:22 April 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 22 April 2022 at 2:42pm

CATCHWORDS

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

LEGISLATION

Acts Interpretation Act 1901, s 36
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 21 November 2019 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 31 December 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 21 November 2019 and dispatched by post. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 13 January 2022 the Tribunal wrote to the applicant inviting his comments on its preliminary view that the application was not valid because it was lodged out of time.  No response was received. 

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 2 December 2019: s 494C of the Act. Therefore the prescribed period to apply for review ended on 29 December 2019.

6. As the last day of the prescribed period fell on a Sunday, the applicant had until the end of the next day that was not a Saturday, a Sunday or a holiday to lodge his application, i.e. until 30 December 2019: s 36(2) of the Acts Interpretation Act 1901 (Cth).

7. As the application for review was not received by the Tribunal until 31 December 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.

   Nicole Burns
   Member