2212547 (Refugee)

[2023] AATA 350

2212547 (Refugee) [2023] AATA 350 (19 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2212547

COUNTRY OF REFERENCE:                   China

MEMBER:Alison Murphy

DATE:19 January 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 19 January 2023 at 9:13am

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 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 for Home Affairs on 23 June 2022 to refuse to grant protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The review application was lodged with the Tribunal on 26 August 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 23 June 2022 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 5 September 2022, a Tribunal officer wrote to the applicant advising that it appeared the review application was not a valid application as it was not lodged within the relevant time limit.  The applicant was invited to comment on whether a valid application had been made. On the same date the applicants wrote to the Tribunal explaining that the application was lodged late because they had missed the Department’s email notification in the context of one of the applicant’s being diagnosed with a serious medical condition.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 23 June 2022: s 494C of the Act. Therefore the prescribed period to apply for review ended on 20 July 2022. The Tribunal acknowledges the difficult circumstances experienced by the applicants and the reasons for the late lodgement of the review application, however the Tribunal has no power to extend the time to lodge a valid review application.

6. As the application for review was not received by the Tribunal until 26 August 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.

   Alison Murphy
   Member