2216465 (Refugee)

[2023] AATA 623

2216465 (Refugee) [2023] AATA 623 (19 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Yue Sun (MARN: 1687292)

CASE NUMBER:  2216465

COUNTRY OF REFERENCE:                   China

MEMBER:Wendy Banfield

DATE:19 February 2023

PLACE OF DECISION:  Canberra

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

Statement made on 19 February 2023 at 2:55pm

CATCHWORDS
REFUGEE – protection visa – China – application for review made more than 28 days after notification of visa refusal – claim that friend who helped with visa application did not tell applicant about refusal – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth), r 4.31(2)

CASE
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 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 30 March 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 10 November 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 30 March 2022 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The Tribunal wrote to the applicant on 16 November 2023 advising her as follows:

   It appears that your application is not a valid application as it was not lodged within the relevant time limit. 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. 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].

   The primary decision was emailed to you on 30 March 2022 meaning that 30 March 2022 was the date on which you are taken to have been notified. In accordance with DZAFH, the last day for lodging the application for review was 26 April 2022. As the application was not received until 10 November 2022, it appears to be out of time. However, this is a matter which must be determined by a Member.

5. The applicant replied to the invitation to comment through her representative on 18 November 2022:

   We understand that her visa refusal date was 30 Mar 2022. And she should apply to the AAT within 28 days commencing on the day she received the decision letter. However, she did not receive the decision letter until Jul 2022. She appointed a friend to help her with the visa application, however her friend did not tell her about the visa refusal.

   When she received the Medicare letter on 28 Jun 2022, she contracted her friend and found out her visa application was refused. Her friend sent the letter to her on Jul 2022 and she did not know what to do after. Her friend got Covid-19 and forgot about the applicant's visa application. She felt sorry and searched for a migration agent to assist with this matter.

6. The applicant submitted evidence in the form of an email address, text messages, and a copy of a Medicare letter. The Tribunal considered the response provided but finds that the applicant is taken to have been notified of the decision on 30 March 2022: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 26 April 2022.

7. As the application for review was not received by the Tribunal until 10 November 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.

   Wendy Banfield
   Member