2209804 (Refugee)

[2022] AATA 4131

2209804 (Refugee) [2022] AATA 4131 (18 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2209804

COUNTRY OF REFERENCE:                   China

MEMBER:Mr S Norman

DATE:18 October 2022

PLACE OF DECISION:  Sydney

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

Statement made on 18 October 2022 at 12:30pm

CATCHWORDS

REFUGEE – protection visa – China – review application out of time – stating the merits review application deadline in absolute terms – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 66, 494C
Migration Regulations 1994, r 4.31

CASES

Cao v MIAC (2009) 176 FCR 396
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

1. This is an application for review of a decision of a delegate of the Minister for Home Affairs on 17 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 5 July 2022. 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 the applicant was notified of the decision by letter dated 17 March 2022 and dispatched by email. The Tribunal is satisfied the applicant was notified of the decision in accordance with the statutory requirements.

4. By letter dated 12 July 2022 (dispatched by email), the Tribunal wrote to the applicant and advised it appeared the review application was not valid 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 an 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].

5. The primary decision was emailed to the applicant on 17 March 2022 meaning that 17 March 2022 was the date on which she was taken to have been notified. In accordance with DZAFH, the last day for lodging the application for review was 13 April 2022. As the application was not received until 5 July 2022, it appeared to be out of time. The applicant was invited to comment in writing by 26 July 2022.

6. By letter dated 26 July 2022, the applicant said the notification did not comply with ‘66(2) of 1994’. The applicant continued that ‘instead of stating the deadline for a merits review application in absolute terms … the [Department] notification letter set out the formula contained in the legislative provisions for determining that deadline, along with the parameters to be used in that formula’. Further, the ‘Full Court held’ that by using that complex formular, as opposed to stating the deadline of [in that case] 13 March 2017 in absolute terms, the letter did not comply with s.66(2)’. The applicant then set out that part of the Department decision notification letter referring to inter alia the 28 day review period (after notification), and without nominating a specific (end) date for lodging the review.

7. The applicant did not explain, and the Tribunal was unable to identify, where in (ie) DZAFH it was set out that the Department notification letter was required to specifically state the last day within which a review application could be lodged with the Tribunal, in ‘absolute terms’.

8. The Tribunal understands the obligation in s 66(2)(d)(ii) of the Act to state the time in which the review application may be made requires that it be conveyed in a complete and clear manner. It does not require specification of the actual date by which an application must be lodged. It must however, provide complete information that clearly discloses to the review applicant when the review application has to be lodged.[1]

   [1] See Cao v MIAC (2009) 176 FCR 396.

9. That being said, the Tribunal is satisfied the applicant was correctly notified of the Department decision, and the applicant was therefore in excess of 2 ½ months late in lodging the review application with the Tribunal.

10. Based on the evidence, the Tribunal finds that the applicant is taken to have been notified of the decision on 17 March 2022: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 13 April 2022.

11. As the application for review was not received by the Tribunal until 5 July 2022 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

    decision

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

    Mr S Norman
    Member