1619810 (Refugee)

[2017] AATA 3123

1619810 (Refugee) [2017] AATA 3123 (24 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1619810

COUNTRY OF REFERENCE:                  China

MEMBER:Luke Hardy

DATE:24 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 24 October 2017 at 2:27pm

CATCHWORDS
Refugee – Protection Visa – China – Application not made within required timeframe

LEGISLATION
Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth), r 4.31(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. This is an application for review of a decision of a delegate of the Minister for Immigration on 17 October 2016 to refuse to grant protection visas under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 23 November 2016. 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: r.4.31(2) of the Migration Regulations 1994.

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 17 October 2016 and dispatched by post.

4. The Tribunal wrote as follows to the applicant on 7 June 2017:

   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 posted to you on 17 October 2016 meaning that 26 October 2016 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 22 November 2016. As the application was not received until 23 November 2016, it appears to be out of time. However this is a matter which must be determined by a Member.

   If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 21 June 2017. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.

5. To date there has been no response from the applicant.

6. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

7. Having regard to the ruling of the Court in DZAFH, the Tribunal finds that the applicant is taken to have been notified of the decision on 26 October 2016: s.494C of the Act. Therefore the prescribed period to apply for review ended on 22 November 2016. As the application for review was not received by the Tribunal until 23 November 2016 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Luke Hardy
   Member