2201000 (Refugee)

[2022] AATA 2362

2201000 (Refugee) [2022] AATA 2362 (1 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Stanley Chan (MARN: 0430097)

CASE NUMBER:  2201000

COUNTRY OF REFERENCE:                   China

MEMBER:Alison Murphy

DATE:1 June 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 01 June 2022 at 2:40pm

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

CASES
SZRHA v MIAC [2013] FMCA 131

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 25 October 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 26 January 2022. 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 25 October 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 10 February 2022, a Tribunal officer wrote to the applicant advising that it appeared the review application was not a valid application as it was not lodged within the relevant time limit.  The applicant’s representative responded to the effect that he had recently taken over as the applicant’s migration agent and the applicant’s previous agent had not forwarded the decision notification to the applicant and lodged the application to the Tribunal without the applicant’s consent.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 25 October 2021: s 494C of the Act. Therefore the prescribed period to apply for review ended on 21 November 2021.

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 or her application, i.e. until 22 November 2021: s 36(2) of the Acts Interpretation Act 1901 (Cth).

7. The Tribunal notes the explanation provided by the applicant’s current representative for the late lodgement. However even where the applicant is not at fault in making a late application, for example due to the negligence on the part of his or her migration agent, the Australian courts have held that the Migration and Refugee Division of the Tribunal does not have the power to extend time limits.[1]

   [1] SZRHA v MIAC [2013] FMCA 131. Upheld on appeal: SZRHA v MIAC [2013] FCA 531.

8. As the application for review was not received by the Tribunal until 26 January 2022 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Alison Murphy
   Member