2204350 (Refugee)

[2022] AATA 2365

2204350 (Refugee) [2022] AATA 2365 (7 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2204350

COUNTRY OF REFERENCE:                   China

MEMBER:Rachel Da Costa

DATE:7 June 2022

PLACE OF DECISION:  Sydney

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

Statement made on 07 June 2022 at 1:43pm

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 28 July 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 25 March 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 28 July 2021 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The Tribunal finds that the applicant is taken to have been notified of the decision on 28 July 2021: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 24 August 2021.

5. On 6 May 2022, the Tribunal wrote to the applicant explaining that the time limit for lodging an application for review is 28 days from the day on which the applicant is taken to have been notified of the primary decision. The letter explained that the primary decision was emailed to the applicant on 28 July 2021 and on that basis, the last day for lodging the application for review was 24 August 2021. The letter noted that the application was not received until 25 March 2022 and appeared to be out of time. The applicant was invited to comment in writing on the validity of his application, by 20 May 2022, in light of this information. No response was received.

6. As the application for review was not received by the Tribunal until 25 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

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

   Rachel Da Costa
   Member