1614089 (Refugee)

[2017] AATA 3110

1614089 (Refugee) [2017] AATA 3110 (15 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1614089

COUNTRY OF REFERENCE:                  India

MEMBER:Alison Murphy

DATE:15 August 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 15 August 2017 at 9:15am

CATCHWORDS
Refugee – Protection visa – India – Invalid application – Timeframes not met – No jurisdiction

LEGISLATION
Migration Act 1958, ss 65, 412, 494C
Migration Regulations 1994, r 4.31 Schedule 2

CASES
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 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 5 August 2016, 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 2 September 2016. 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. On 31 May 2017 a Tribunal officer wrote to the applicant advising him that it appeared his review application was not a valid application as it was not lodged within the relevant time limit.  The applicant was invited to comment on whether a valid application had been made by 14 June 2017.  On 14 June 2017 the applicant wrote to the Tribunal advising he was going through a life crisis and with no work rights or pay to support his day to day life, it was hard for him to access even such basic necessities as the internet.  He states he had lodged his application without assistance as he couldn’t afford to pay for assistance.   

4. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 5 August 2016 and dispatched to him by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 5 August 2016. Pursuant to r.4.31(2) of the Regulations, the period in which an application for review of a Part 7 reviewable decision must be given to the Tribunal is 28 working 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.

6. Therefore the prescribed period within which the review application could be made ended on 1 September 2016. The Tribunal acknowledges the application was received only one day late and the applicant has explained that he was not able to afford to access the internet or otherwise pay for assistance.  However the Tribunal has no power to extend the time to lodge a valid application. As the application for review was not received by the Tribunal until 2 September 2016, 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.

   Alison Murphy
   Member