2304502 (Refugee)

[2023] AATA 2437

2304502 (Refugee) [2023] AATA 2437 (4 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2304502

COUNTRY OF REFERENCE:                   China

MEMBER:Namoi Dougall

DATE:4 July 2023

PLACE OF DECISION:  Sydney

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

Statement made on 04 July 2023 at 7:33pm

CATCHWORDS
REFUGEE – protection visa – China – application for review made more than 28 days after notification of refusal decision – applicant believes department’s notification went into junk email – 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 9 September 2020 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 29 March 2023. 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 9 September 2020 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 18 April 2023, the Tribunal sent to the applicant a natural justice letter advising her of the above and that the last day for lodging a review application was 6 October 2020 and her application was lodged on 28 March 2023. On 2 May 2023, the applicant responded to the Tribunal’s letter stating that she did not receive the delegate’s decision although she had provided her correct contact details. She believes that the email went into her junk mail. Unfortunately, the information cannot overcome the jurisdictional issue.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 9 September 2020: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 6 October 2020.

6. As the application for review was not received by the Tribunal until 29 March 2023 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Namoi Dougall
   Member