2206323 (Refugee)

[2022] AATA 2517

2206323 (Refugee) [2022] AATA 2517 (28 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2206323

COUNTRY OF REFERENCE:                   China

MEMBER:James Silva

DATE:28 June 2022

PLACE OF DECISION:  Sydney

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

Statement made on 28 June 2022 at 11:40am

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 494C
Migration Regulations 1994, rr 2.55, 4.31

CASES

DZAFH v Minister for Immigration [2017] FCCA 387

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 4 February 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 29 April 2022. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 4 February 2021 and dispatched by post. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

3. The Tribunal finds that the applicant is taken to have been notified of the decision on 15 February 2021: s 494C of the Act OR reg 2.55 of the Regulations.

4. 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). In DZAFH v Minister for Immigration [2017] FCCA 387, the Federal Circuit Court held that the prescribed period in r.4.31 commences on, and includes, the day the applicant is taken to have been notified of the decision: at [44] – [46]. Therefore the prescribed period to apply for review ended on 14 March 2021.

5. The Tribunal wrote to the applicant on 23 May 2022, inviting his comments on the validity of the application for review, as it appeared to have been made out of time. There was no acknowledgement or reply.

6. As the application for review was not received by the Tribunal until 29 April 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.

   James Silva
   Member