2203494 (Refugee)

[2022] AATA 5251

2203494 (Refugee) [2022] AATA 5250 (9 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2203494

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Nathan Goetz

DATE:9 June 2022

PLACE OF DECISION:  Sydney

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

CATCHWORDS

REFUGEE – protection visa – Taiwan – review application out of time – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 494C
Migration Regulations 1994, r 4.31

CASES

Beni v Minister for Immigration and Border Protection [2018] FCAFC 228

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. 1. This is an application for review of a decision of a delegate of the Minister to refuse to grant protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. 2.       The [applicant]is a [age] woman from Taiwan. She arrived onshore [in] November 2019 holding a Student Visa. The [applicant]is her daughter. The applicants lodged the Protection (XA 866) visa application on 23 November 2021. On 11 February 2022 the delegate refused to grant the protection visas.

3. 3. 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).

4. 4.       The review application was lodged with the Tribunal on 11 March 2022.

5. 5.       The Tribunal wrote to the applicant on 11 March 2022 inviting her to comment on the validity of the review application. On 16 March 2022 the applicant submitted the following explanation for the delay in lodging her review application:

6. 6.       “[d]ue to my limited English , I have to seek help from other people with my AAT review lodgement online, however I was initially planed to get someone on 8th march to lodge on line which is within the review time. however on 6th march after I got the booster done , i felt very uncomfortable and sick and had to stay in bed at home . I had very bad headache and body sour which led me mistake the time and date , after i got a little bit better on 11 th , I immediately lodged my AAT review, due to my mind was not clear , I still thought it was the last day of the review , after I received your email, I am very shocked, I hope you can understand my situation and accept my review as it is so important for my future life . I have enclosed my evidence for the booster for your kind consideration.”

7. 7.       The applicant attached a ‘Vaccination Statement’ from Pharmacy [name deleted] in [location deleted] stating a booster does was received by [the applicant] on 6 March 2022.

8. 8.       For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

9. 9.       The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 11 February 2022 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

10. 10.      The Tribunal finds that the applicant is taken to have been notified of the decision on 11 February 2022: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 10 March 2022.

11. 11.      The Tribunal has considered the explanation provided about why the review application was not lodged within the prescribed timeframe, however there is no power for the Migration and Refugee Division of the Tribunal to extend time to make an invalid review application valid: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 (14 December 2018).

12. 12.      As the application for review was not received by the Tribunal until 11 March 2022 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

    decision

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

    Nathan Goetz
Member