1504940 (Refugee)

[2015] AATA 3173

1504940 (Refugee) [2015] AATA 3173 (2 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504940

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:Rodger Shanahan

DATE:2 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 02 July 2015 at 7:24am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431(2) 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. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated [in] July 2014, 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 12 April 2015. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

2. Pursuant to s.412(1)(b) of the Act and r.4.31 of the Migration Regulations 1994, an application for review of this decision had to be made within 28 days after the applicant was notified of the decision in accordance with the statutory requirements.

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated [in] July 2014 and dispatched by post. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. I have taken into account the letter sent by the applicant claiming that he never received a refusal letter from the Department of Immigration, and that this was the reason that he never submitted his application for review until seven months after the allowable date (folio 46). I have also taken into account the claim that the applicant was injured (folio 41).

5. I note that the refusal letter sent by registered post was correctly addressed but never collected so it is reasonable to believe that the applicant was aware that the document was there for him to pick up yet failed to do so.  I do not accept that the applicant’s injury had anything to do with his failure to pick it up as there is no indication that he was hospitalised for what appears to be a non-debilitating injury to his [thumb] (folio 36).

6. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision [in] August 2014. Therefore the prescribed period within which the review application could be made ended on [date] September 2014. As the application for review was not received by the Tribunal until [date] April 2015 it follows that 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.

   Rodger Shanahan
   Member

   
   

   ATTACHMENT A – RELEVANT LAW

   The criteria for a protection visa are set out in s.36 of the Act and Part 866 of Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa.

   Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

   If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

   In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – to the extent that they are relevant to the decision under consideration.