1805855 (Refugee)

[2018] AATA 926

1805855 (Refugee) [2018] AATA 926 (23 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1805855

COUNTRY OF REFERENCE:                  India

MEMBER:Rosa Gagliardi

DATE:23 March 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 23 March 2018 at 5:12pm

CATCHWORDS
Refugee – Protection visa – India – Invalid application – Application out of time – No discretion to waive the relevant time frames

LEGISLATION
Migration Act 1958, ss 65
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 on [date] February 2018 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 5 March 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. As the applicant was 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 7 working days, commencing on that day. If that day was not a working day, the period commenced on the first working day after that day: r: r.4.31(1) of the Migration Regulations 1994.

3. On 6 March 2018 the Tribunal wrote to the applicant in the interests of natural justice to advise that it appeared that his application was not a valid one as it was not lodged within the relevant time limit.  The period in which an application for review of a Part 7-reviewable decision must be given to the Tribunal is 7 working days, in the applicant’s circumstances.   The Tribunal also advised that 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].

4. The primary decision was handed to the applicant on 22 February 2018 meaning that this was the date on which he was taken to have been notified.  In accordance with the decision in DZAFH, therefore, the last day for lodging an application for review was 2 March 2018.  The applicant had, however, filed his application on 5 March 2018.

5. The applicant was provided an opportunity to comment on the validity of his application.  The applicant responded by saying that it was mentioned in the Decision Record that an appeal can be lodged in 7 working days (working days - Monday to Friday).  He stated that in calculating the final date for lodging, from 22nd February (date of decision) to the 7th day, the final day to lodge his application was 5 March 2018.

6. The applicant has not taken into account, however, the decision in DZAFH which held that the prescribed period commences on, and includes the day the applicant is taken to have been notified of the decision.  The applicant appears to have started his calculation on the day after he was notified, that is, on 23 February 2018.

7. The Tribunal appreciates that the applicant will be disappointed with this decision but it has no discretion to waive the relevant time frames.

8. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 22 February 2018 and dispatched by hand as the applicant is in detention. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

9. The Tribunal finds that the applicant is taken to have been notified of the decision on

   
   

   22 February 2018.  Therefore the prescribed period to apply for review ended on 2 March 2018.

10. As the application for review was not received by the Tribunal until 5 March 2018, the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

    DECISION

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

    Rosa Gagliardi
    Member