2319173 (Refugee)

[2024] AATA 1311

2319173 (Refugee) [2024] AATA 1311 (16 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2319173

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Joseph Lindsay

DATE:16 January 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 16 January 2024 at 3:05pm

CATCHWORDS
REFUGEE – protection visa –Taiwan – application for review made more than 28 days after visa application – claim that agent, later found to be unlicenced, completed and submitted application – refusal sent to her and applicant unaware until Medicare card became unusable – fear of war in home country – work and relationship in Australia – application submitted by self-registered user and states that applicant did not receive assistance – no jurisdiction

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

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 19 January 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 24 November 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 19 January 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 about these issues. In response, the applicant stated:

   Thank you for your letter and for giving me the opportunity to explain before 14th December. My name is [the applicant], a Taiwanese, and I came to Australia [in] October 2017 on a working holiday visa. I applied for the 866 protection visa on 7 November 2020. From 2017 to 2020, I traveled between Sydney and Taiwan as required by the working Holiday Visa. Later, in November 2020, I met a woman named [A] in [Suburb] through the introduction of a friend. She claimed to be a licensed immigration agent. I agreed to authorize her to help me apply for the 866 protection visa, but she used her company's email address: [Email address 1] to submit my visa application. I did not know the password for this email address, so I could not receive the email from the Immigration officer about related to my 866 protection visa.

   It was not until my medicare card became unusable that I learned that my visa had been rejected, so I immediately contacted [Ms. A] from [Suburb], but was unable to get in touch. I learned from others that she did not have an immigration agent license and had been The Immigration Bureau seized the company and sued. In desperation, I asked a friend to help me retrieve my visa notification of refusal documents from my lmml account, only to find that the visa rejection letter was issued on 19/01/2022. The best time to appeal to the AAT Review Office is usually After 28 working days, I was annoyed and regretful. I could only give it a try and applied for an appeal with my email address [Email address 2] on 24/11/2023 and immediately submitted it to the Administrative Appeals Tribunal for review.

   I have to say here that I deeply hate some bad immigration agents in Sydney. They not only lack a sense of responsibility, but also engage in business without an immigration license. My visa status today is thanks to them, oh, my God!

   In addition, the two points I would like to explain in particular are:

   First, the current attitude of the China government clearly states the one-China principle, and the Taiwan Strait issue has become an international focus, which means that China will definitely regain Taiwan and realize the one-China principle. The Taiwan current government in power in Taiwan insists on independence and may even resort to war. The Taiwan government continues to purchase many nuclear weapons to prepare for war. My relatives and friends in Taiwan said that Taiwanese news promotes it like this every day, making everyone feel panicked. I really don't want to see my hometown Taiwan end up becoming the home of war like today's Ukraine.

   Second, I was born in [Year]. I am still young and unmarried. I currently have a girlfriend who loves each other. She knows that the situation in the Taiwan Strait is tense, and she is also worried about my safety. I am even more worried that if I have to go back to Taiwan to wait after we apply for a spouse visa in the future, we will be separated.

   During these 6 years in Australia, I have learned a lot of skills, especially in [a work sector]. Australia is currently short of blue-collar workers. I am willing to put in my efforts because I have deeply fallen in love with this country and its people. I have made many new friends, and now I feel very stable and no longer anxious.

   I sincerely hope that I can live in this country for a long time.

   I sincerely hope that the AAT officials can re-examine my application based on my actual situation. I will be very grateful!

5. The Tribunal has considered the applicant's response as well as the applicant’s protection visa application. The applicant’s protection visa application notes that the following email address was provided: [Email address 1]. This is the same email address to which the protection visa decision was emailed. The protection visa application is an electronic application submitted by a “self-registered user.” The visa application appears to be made by the applicant personally. The application clearly states that the applicant did not receive assistance in completing the visa application.

6. The Tribunal is not satisfied as to the applicant’s explanation as to their claimed lack of awareness of the visa refusal decision. The applicant has ably demonstrated their ability to correspond with the Tribunal by email.

7. In consideration of all the information before the Tribunal, the Tribunal finds that it was the applicant's responsibility to ensure that they provided their correct contact details on their own visa application, including the email address.

8. The Tribunal finds that the applicant is taken to have been notified of the decision on 19 January 2022 in accordance with s 494C of the Act. Therefore the prescribed period to apply for review ended on 15 February 2022.

9. As the application for review was not received by the Tribunal until 24 November 2023 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

    Joseph Lindsay

    Member