1617990 (Refugee)

[2017] AATA 985

1617990 (Refugee) [2017] AATA 985 (5 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1617990

COUNTRY OF REFERENCE:                 India

MEMBER:Michael Hawkins

DATE:05 June 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 05 June 2017 at 10:32am

CATCHWORDS
Refugee – Protection visa – India – No jurisdiction – Prescribed period for valid application

LEGISLATION
Migration Act 1958, ss 65, 412(1)(b), 494C
Migration Regulations 1994, r 4.31

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 [in] September 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 28 October 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. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated [in] September 2016 and dispatched by post. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 14 March 2017 the applicant was invited to attend a hearing to give evidence and present arguments relating to the issues arising in his case.

5. On 21 March 2017 the Tribunal advised that due to circumstances beyond its control, the Member was unable to conduct the hearing on that day and that a new hearing date will be advised when one becomes available.

6. The applicant did not respond to either notice of the invitation or the postponement.

7. On 18 May 2017 the applicant was advised of the decision in DZAFH v Minister for Immigration [2017] FCCA 387 and was invited to comment on whether a valid application has been made by 1 June 2017.

8. At 4.06pm on 1 June 2017, the applicant’s representative responded to the Tribunal and advised that the appeal was lodged in the previously acceptable timeframe of 28 days from the date the applicant received notification, noting that it has always been accepted that the first day of the 28 days was the day after the notification was received. The representative noted that the decision in DZAFH was dated 2 March 2017 and was well after the appeal for the applicant was lodged on 28 October 2016 and that it would only be fair that the applicant is given the opportunity for his appeal to proceed. The representative noted the invitation to attend a hearing and the subsequent postponement and submitted that the application was proceeding at that time.

9. Notwithstanding the submissions of the applicant’s representative, in matters of jurisdiction, the Tribunal has no discretion.

10. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 30 September 2016. Therefore the prescribed period within which the review application could be made ended on 27 October 2016. As the application for review was not received by the Tribunal until 28 October 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

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

    Michael Hawkins
    Member