1713418 (Refugee)

[2017] AATA 3081

1713418 (Refugee) [2017] AATA 3081 (1 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1713418

COUNTRY OF REFERENCE:                  Taiwan

MEMBER:Christine Cody

DATE:1 September 2017

PLACE OF DECISION:  Sydney

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

Statement made on 01 September 2017 at 8:11am

CATCHWORDS
Refugee – Protection visa – Taiwan – Applicant notified of the decision – No jurisdiction to review the matter

LEGISLATION
Acts Interpretation Act1901 s 36
Migration Act 1958, ss 65, 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. This is an application for review of a decision of a delegate of the Minister for Immigration on [date] February 2017 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 23 June 2017. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated [date] February 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

3. 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.

4. The Tribunal forwarded a letter to the applicant on 21July 2017 stating:

   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 emailed to you on 13 February 2017 meaning that 13 February 2017 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 13 March 2017. As the application was not received until 23 June 2017, it appears to be out of time. However this is a matter which must be determined by a Member.

5. The Tribunal received a response from the applicant on 25 July 2017. He stated that he found the notification in his junk mail folder too late, and he still would like the Tribunal to give him a chance. The Tribunal however does not have any discretion in this matter.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 13 February 2017: s.494C of the Act. Therefore the prescribed period to apply for review ended on 13 March 2017[1]. As the application for review was not received by the Tribunal until 23 June 2017 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   [1] The final day of the 28 day period would normally fall on [date] March 2017; however that day was a Sunday. If the last day of the time period within which the applicant can lodge an application to the Tribunal falls on a Saturday, a Sunday or a holiday, the applicant has until the end of the next day that is not a Saturday, a Sunday or a holiday to lodge his or her application. The term ‘holiday’ is defined for these purposes to mean either a day that is a public holiday in the place in which the application is lodged, or the day on which the office where the application is lodged is closed for the whole day (for example, the public service holiday between Christmas and New Year): s.36(2), s.36(3), Acts Interpretation Act1901

   DECISION

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

   Christine Cody
   Member