1808368 (Refugee)

[2018] AATA 2537

1808368 (Refugee) [2018] AATA 2537 (23 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1808368

COUNTRY OF REFERENCE:                  China

MEMBER:Frances Simmons

DATE:23 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 23 April 2018 at 12:04pm

CATCHWORDS
Refugee – Protection Visa – China – Application lodged out of time – No jurisdiction

LEGISLATION
Migration Act 1958, ss 65, 494
Migration Regulations 1994, r 4.31
Acts Interpretation Act 1901, s 36

CASES

Haque v Minister for Immigration and Citizenship [2010] FCA 346
MIBP v Kim [2014] FCA 390

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 14 September 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 March 2018. 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 14 September 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 on 5 April 2018 inviting the applicant to comment upon the validity of his application. The applicant did not respond to this invitation.

5. The applicant’s protection visa application provides his residential address in Australia and his email address. The Tribunal finds that the Minister was legally entitled to elect to notify the applicant of the decision by post pursuant to s 494B of the Act.[1]

   [1] Haque v Minister for Immigration and Citizenship [2010] FCA 346 at [64]; MIBP v Kim [2014] FCA 390 at [34]-[35].

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 25 September 2017: s.494C of the Act. Therefore the prescribed period to apply for review ended on 22 October 2017.

7. As the last day of the prescribed period fell on a Sunday, the applicant had until the end of the next day that was not a Saturday, a Sunday or a holiday to lodge his or her application, i.e. until 23 October 2017: s.36(2) of the Acts Interpretation Act 1901.

8. As the application for review was not received by the Tribunal until 26 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

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

   Frances Simmons
   Member