2211602 (Refugee)

[2022] AATA 4974

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__­____«­__€€Í“_­____«{2211602 (Refugee) [2022] AATA 4974 (21 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2211602

MEMBER:James Silva

DATE:21 November 2022

PLACE OF DECISION:  Sydney

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

Statement made on 21 November 2022 at 4:39pm

CATCHWORDS
REFUGEE – Protection Visa – China – applicant was notified of the decision in accordance with the statutory requirements– application lodged out of time – non-reviewable decision – no jurisdiction

LEGISLATION
Acts Interpretation Act 1901 (Cth), s 36(2)
Migration Act 1958, ss 5, 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 September 2020 to refuse to grant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The review application was lodged with the Tribunal on 10 August 2022. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

3. On the application form, the applicant wrote that he was seeking review of a decision dated 8 October 2020 to refuse to grant him a Bridging C visa. However, he attached to the application form a decision dated 28 September 2020 to refuse to grant him a protection visa. The Tribunal therefore proceeds on the basis that the reference to the Bridging C visa was a clerical error.

4. The material before the Tribunal indicates that the applicant was notified of the delegate’s decision by letter dated 8 October 2020 (which appears to explain his reference to that date in this application for review). The letter was dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 8 October 2020: s.494C of the Act.

6. 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 4 November 2020. As the application was not received until 10 August 2022, it appeared to have been made outside the prescribed period.

7. The Tribunal notes that the applicant made an earlier application for review of this decision, on 14 September 2021. The Tribunal, differently constituted, found that it did not have jurisdiction because the review application had been lodged outside the prescribed period.

8. The Tribunal wrote to the applicant on 12 August 2022, inviting comment on the validity of the application. The officer indicated the preliminary view that, as the Tribunal had completed a review of the delegate’s decision (in its decision of 14 September 2021), the delegate’s decision was no longer a  reviewable decision. The Tribunal also wrote to the applicant on 29 August 2022, indicating that the application for review appear to have been made out of time.

9. The applicant sent an email on 26 August 2022 stating: ‘Can you help me take more time? I want to stay and work here in Australia.’ The brief note did not address any jurisdictional issues. Relevantly, the Act does not give the Tribunal any discretion to treat as valid an application that does not meet the prescribed requirements.

10. As the application for review was not received by the Tribunal until 10 August 2022, the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

11. As the first application for review (lodged on 14 September 2021), was not valid, the Tribunal did not have the power to review the decision under the Act. This is therefore not an instance where the Tribunal has carried out its statutory duty, such that the decision is ‘no longer a reviewable decision’, as referred to in SZBWJ v MIAC [2008] FMCA 164 at [41] and the cases cited therein.

    decision

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

    James Silva
    Member