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

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.
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).
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.
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,…

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.

Keep reading for free

Create a free CaseChat account to read 2216465 (Refugee) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] AATA 623
Decision Date: 19 February 2023

CaseChat Overview and Summary

The applicant, a citizen of China, sought review of a decision to refuse their application for a protection visa. The Administrative Appeals Tribunal (AAT) considered whether it had jurisdiction to hear the application, which was lodged more than 28 days after the applicant was notified of the visa refusal. The applicant contended that a friend who assisted with their visa application had failed to inform them of the refusal.

The central legal issue before the Tribunal was whether the application for review had been made within the time prescribed by the relevant legislation, and if not, whether there were any grounds for the Tribunal to extend the time for making the application. The Tribunal was required to determine if the applicant's explanation for the delay constituted a sufficient reason to exercise any discretion to extend time, thereby conferring jurisdiction.

The Tribunal found that the application for review was received on 10 November 2022, which was outside the statutory timeframe for lodging such an application following notification of the visa refusal. Applying the relevant legislative provisions, the Tribunal concluded that the application was not made in accordance with the law. Consequently, the Tribunal determined that it lacked jurisdiction to consider the merits of the applicant's case.

The Tribunal made no orders as to costs and determined that it did not have jurisdiction in this matter.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 The Tribunal does not have jurisdiction in this matter.Wendy BanfieldMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.