2203504 (Refugee)

[2022] AATA 2483

2203504 (Refugee) [2022] AATA 2483 (9 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2203504

COUNTRY OF REFERENCE:                   China

MEMBER:Nathan Goetz

DATE:9 June 2022

PLACE OF DECISION:  Sydney

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

Statement made on 09 June 2022 at 2:26pm

CATCHWORDS
REFUGEE – Protection Visa – China – application for review is not a valid application – non-reviewable decision – 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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant is a [age]-year-old man from the People’s Republic of China. He arrived onshore on [date] November 2019 holding a Visitor Visa. The applicant applied for the Protection (XA 866) Visa on 5 February 2020. On 15 January 2021 the delegate refused to grant the protection visa.

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. On 29 March 2021 the applicant applied to the Tribunal for review of the decision to refuse to grant the protection visa. On 10 May 2021 the Tribunal finalised that review application on the basis that it had no jurisdiction to review the refusal decision: AAT case 2104030

5. On 11 March 2022 the applicant again applied to the Tribunal for review of the decision to refuse to grant the protection visa. It is this review application that the Tribunal is presently considering.

6. The Tribunal wrote to the applicant on 8 April 2022 inviting him to comment on the validity of the review application by 22 April 2022. No response was received.

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

8. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 15 January 2021 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

9. The Tribunal finds that the applicant is taken to have been notified of the decision on 15 January 2021: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 11 February 2021.

10. 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.

11. If the applicant disagrees with the decision of the Tribunal in AAT case 2104030, then the proper course is for him to seek judicial review of that decision with the Federal Circuit and Family Court of Australia. The proper course is not to lodge another review application with the Tribunal.

    DECISION

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

    Nathan Goetz
    Member