2212745 (Refugee)

[2023] AATA 460

2212745 (Refugee) [2023] AATA 460 (19 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2212745

COUNTRY OF REFERENCE:                   China

MEMBER:Lilly Mojsin

DATE:19 January 2023

PLACE OF DECISION:  Sydney

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

Statement made on 19 January 2023 at 12:52pm

CATCHWORDS
REFUGEE – protection visa – China – application for review made more than 28 days after notification of refusal decision – email address to which notification sent was created by migration agency, which has now closed – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth), 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 24 May 2022 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 30 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 24 May 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 23 September 2022, the Tribunal wrote to the applicant at her address for service, [email address] advising her that it appears her application is not a valid application as it was not lodged within the relevant time period. Pursuant to r.4.31(2) of the Migration Regulations 1994, the period in which an application for review of a Part 7-reviewable decision must be given to the Tribunal is 28 days, commencing on the day the applicant is notified of the decision. The primary decision was emailed to her on 24 May 2022 meaning that 24 May 2022 was the date on which she is taken to have been notified and the last day for lodging the application for review was 20 June 2022. As the application was not received until 30 August 2022, it appears to be out of time.

5. The applicant was invited to comment on whether a valid application had been made by 7 October 2022. The applicant responded on 7 October 2022 advising she had lodged her protection visa application to the Department through an agent named “Northern House” who had created the email address to which the Department’s decision was sent. She further stated that she only discovered later that Northern House had closed and that she had missed the review deadline.

6. The Tribunal does not have any discretion, despite the applicant’s claims that she was not aware her migration has closed. The Tribunal finds that the applicant is taken to have been notified of the decision on 24 May 2022 per s 494C of the Act. Therefore, the prescribed period to apply for review ended on 20 June 2022.

7. As the application for review was not received by the Tribunal until 30 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

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

   Lilly Mojsin
   Member