1713555 (Refugee)

[2017] AATA 1380

1713555 (Refugee) [2017] AATA 1380 (4 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1713555

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:Angela Cranston

DATE:4 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 04 August 2017 at 1:59pm

CATCHWORDS

Refugee – Protection Visa – Lebanon – Out of time – No jurisdiction

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 [in] May 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 26 June 2017. 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 [in] May 2017 and dispatched by post. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The Tribunal wrote to the applicant’s authorised recipient on 14 July 2017 as follows:

   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 [in] May 2017 meaning that  [May] 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 [June] 2017. As the application was not received until 26 June 2017, it appears to be out of time. However this is a matter which must be determined by a Member.

5. The applicant’s authorised recipient responded stating that the date would expire on 26 June due to the Queen’s birthday on 12 June 2017 being a public holiday.  

6. The Tribunal finds that the applicant is taken to have been notified of the decision [in] May 2017: s.494C of the Act. Therefore the prescribed period to apply for review ended within 28 days, or [in] June 2017, regardless of whether 12 June 2017 was a public holiday or not. As the application for review was not received by the Tribunal until 26 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

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

   Angela Cranston
   Member