2107097 (Refugee)

2107097 (Refugee) [2021] AATA 5620 (30 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2107097
COUNTRY OF REFERENCE:                   China
MEMBER:Hugh Sanderson
DATE:30 September 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 30 September 2021 at 9:09am
CATCHWORDS
REFUGEE – protection visa – China – application for review made more than 28 days after notification of refusal decision – application falsely stated date within 28 days – no response to tribunal’s invitation to comment – 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 Immigration on 20 August 2020 to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 28 May 2021. 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: r.4.31(2) of the Migration Regulations 1994.
When the application was made, the applicant falsely stated that they were seeking a review of a decision of the Department dated 1 May 2021. As indicated above, the only decision the Department has made in respect of the applicant and the decision referred to in the application was the decision to refuse the Protection visa application on 20 August 2020 with the applicant notified by email on that day.
An officer from the Tribunal wrote to the applicant on 26 July 2021 stating 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 20 August 2020 meaning that 20 August 2020 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 16 September 2020. As the application was not received until 28 May 2021, it appears to be out of time.
The applicant was required to respond to this information by 9 August 2021. At the time of this decision, the Tribunal has not received any response or comment from the applicant.
The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 20 August 2020 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
The Tribunal finds that the applicant is taken to have been notified of the decision on 20 August 2020: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 16 September 2020.
As the application for review was not received by the Tribunal until 28 May 2021 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.
Hugh Sanderson
Member

The Administrative Appeals Tribunal (AAT) considered an application for review of a decision to refuse a protection visa made by an applicant from China. The applicant sought review of the refusal decision, but their application was lodged with the Tribunal after the statutory time limit had expired. The Tribunal had invited the applicant to comment on the timeliness of their application, but no response was received.

The central legal issue before the Tribunal was whether it had jurisdiction to consider the applicant's review application, given that it was lodged outside the prescribed 28-day period following notification of the refusal decision. This required the Tribunal to determine if the application had been made in accordance with the relevant legislative provisions governing the time for lodging applications for review.

The Tribunal found that the application for review was received on 28 May 2021, which was more than 28 days after the applicant was notified of the refusal decision. As the application was not made within the time stipulated by the legislation, the Tribunal concluded that it lacked jurisdiction to hear the matter. The Tribunal did not have jurisdiction in this matter.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established