1724652 (Refugee)

[2017] AATA 2663

1724652 (Refugee) [2017] AATA 2663 (17 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1724652

MEMBER:Christine Cody

DATE:17 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 17 November 2017 at 6:15pm

CATCHWORDS
Refugee – Protection visa – Review application lodged out of time – Repeated application – No jurisdiction

LEGISLATION
Migration Act 1958, ss 65, 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. This is an application for review of a decision of a delegate of the Minister for Immigration [in] March 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 10 October 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 Tribunal forwarded a letter to the applicant on 3 October 2017 stating:

   Your current application for review lodged 10 October 2017 was made on a form
   entitled “Application for Review to the Migration and Refugee Division”. The application for review form states that the decision sought to be reviewed is a “visa refusal” dated [in] November 2016, the visa type and subclass is said to be “[subclass]”, and in response to the request for the “Department’s file number”, it states [File number].
   [File number] is the Departmental file relating to your application for a protection
   visa. There is no evidence however before the Tribunal of a refusal of a [(bridging)] visa for you. The only visa refusal decision of the Department for file
   [number] , is a decision [in] March 2017 to refuse to grant you a
   protection visa. Thus, it appears that you are seeking a review of the delegate’s
   decision to refuse to grant you a protection visa.
   However, 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 [date] March 2017 meaning that [date] March 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 [date] April 2017. As the
   application was not received until 10 October 2017, it appears to be out of time.
   However this is a matter which must be determined by a Member.

4. The Tribunal has received no response from the applicant.

5. The Tribunal finds that in lodging his current application for review, the applicant is seeking that the Tribunal review the delegate’s decision of  [March] 2017 to refuse to grant him a protection visa.

6. The Tribunal also notes that the applicant has attempted to review the same delegate’s decision on three previous occasions (1707455, 1719230, 1724846). However, in this decision, the Tribunal is considering the current application for review.

7. The Tribunal finds that the applicant is taken to have been notified of the decision [in] March 2017: s.494C of the Act. Therefore the prescribed period to apply for review ended [in] April 2017. As the application for review was not received by the Tribunal until 10 October 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