2311298 (Refugee)

[2023] AATA 4404

2311298 (Refugee) [2023] AATA 4404 (12 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2311298

COUNTRY OF REFERENCE:                   China

MEMBER:Rachel Da Costa

DATE:12 October 2023

PLACE OF DECISION:  Sydney

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

Statement made on 12 October 2023 at 4:24pm

CATCHWORDS
REFUGEE – protection visa – China – review application made out of time – 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 8 January 2021 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 31 July 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 8 January 2021 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 finds that the applicant is taken to have been notified of the decision on 8 January 2021: s 494C of the Act. Therefore the prescribed period to apply for review ended on 4 February 2021.

5. On 17 August 2023, the Tribunal wrote to the applicant and explained it was of the view that her application for review was not valid because it was not lodged within the relevant time limit. The applicant was invited to comment in writing on the validity of her application by 31 August 2023.

6. On 28 August 2023, the applicant responded by email. She stated, “I was persecuted by the Chinese Communist Party due to my beliefs, and I fled to Australia. The person who was helping me with my protection visa couldn’t be reached later, and nobody informed me about the need to appeal, so I missed the opportunity to appeal.”

7. The Tribunal has considered the applicant’s response but it does not have a discretion to extend the timeframe for lodgement. As the application for review was not received by the Tribunal until 31 July 2023 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.

   Rachel Da Costa
   Member