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

1. 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.

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). 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].

3. 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.

4. 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.

5. 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 person is taken to have received the document at the end of the day on which the document is transmitted.

6. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 21 September 2022 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 21 September 2022: s 494C of the Act. Therefore the prescribed period to apply for review ended on 18 October 2022.

8. 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

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

   Brendan Darcy
   Member