1713446 (Refugee)

[2017] AATA 3102

1713446 (Refugee) [2017] AATA 3102 (11 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1713446

COUNTRY OF REFERENCE:                  China

MEMBER:Christine Cody

DATE:11 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 11 August 2017 at 6:10pm

CATCHWORDS

Refugee – Protection Visa – China – Application not made in time

LEGISLATION

Migration Act 1958, ss 65, 494C
Migration Regulations 1994, 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 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 application for review form was lodged on 23 June 2017. It did not attach a copy of the decision sought to be reviewed. Although it stated that the decision to be reviewed was dated 1 June 2017, the Tribunal was unable to locate a decision of that date. The form indicated that the applicant sought a review of a decision to refuse a protection visa (subclass XA-866). The form also provided the Departmental [file number]. That file, which is before the Tribunal, contains the applicant’s application for a protection visa, and the decision of the Department to refuse to grant that protection visa on 13 December 2016.

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 13 December 2016 and dispatched by post. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. The Tribunal finds that the decision sought to be reviewed is the decision of the Department to refuse the applicant’s application for a protection visa, which decision was dated 13 December 2016 and notified by letter dated 13 December 2016 and dispatched by post.

4. 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.

5. 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 posted to you on 13 December 2016 meaning that 22 December 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 18 January 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.
   If you wish to make any comments on whether a valid application has been made, you
   are invited to do so, in writing, by 4 August 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.

6. The Tribunal did not receive any response.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 22 December 2016: s.494C of the Act. Therefore the prescribed period to apply for review ended on 18 January 2017. 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.

   DECISION

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

   Christine Cody
   Member