2215563 (Refugee) - [2023] AATA 630

2215563 (Refugee) [2023] AATA 630 (6 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2215563
COUNTRY OF REFERENCE:                   China
MEMBER:Brendan Darcy
DATE:6 February 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 06 February 2023 at 2:46pm
CATCHWORDS
REFUGEE – Protection Visa – China – applicant was notified of the decision in accordance with the statutory requirements– application lodged out of time – no jurisdiction
LEGISLATION
Migration Act 1958, ss 5, 65, 494C
Migration Regulations 1994, r 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

This is an application for review of a decision of a delegate of the Minister for Home Affairs on 21 September 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 23 October 2022. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
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].
On 8 November 2022, the Tribunal invited the applciant to comment on the validity of the application for review, and to do so by 22 November 2022.
On 22 November 2022, The Tribunal received an emailed response from the applicant. The email argued that the following:
I was not notified of the refusation from the department in time. The way that the documents were sent by the department was doubtful. How they could make sure the document had been sent to me properly and how I could receive it on that day (21 Sep 2022) without obstacles are not considered. It is not fair to me.
The fact is when I noticed the situation, I lodged my review application immediately.
Section 494C(5) states that when notification of a refusal decision is given to a person by fax, email or other electronic means, the person is taken to have received the document at the end of the day on which the document is transmitted. Similarly, section 494C(6) states that when notification of a refusal decision is given to a person by making the document by way of an online account, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] AATA 630
Decision Date: 6 February 2023

CaseChat Overview and Summary

The applicant, a citizen of China, sought review of a decision concerning their application for a protection visa. The Administrative Appeals Tribunal (AAT) was the forum for this review.

The central legal issue before the Tribunal was whether it possessed jurisdiction to hear the applicant's application for review, given that the application was lodged out of time.

The Tribunal determined that the application for review was received on 23 October 2022, which was after the statutory deadline for lodging such an application. Consequently, the Tribunal concluded that the application had not been made in accordance with the relevant legislative requirements, and therefore, it lacked jurisdiction to proceed with the review.

The Tribunal made no orders as it found it had no jurisdiction in the matter.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As the application for review was not received by the Tribunal until 23 October 2022 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.DECISION The Tribunal does not have jurisdiction in this matter.Brendan DarcyMember

Ratio Decidendi

Legal Principle Established

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