1810092 (Refugee)

[2018] AATA 1698

1810092 (Refugee) [2018] AATA 1698 (9 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1810092

COUNTRY OF REFERENCE:                  China

MEMBER:Ms Christine Long

DATE9 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 09 May 2018 at 1:31pm

CATCHWORDS
Refugee – Protection visa – China – Review application lodged out of time

LEGISLATION
Acts Interpretation Act 1901, s 36(2)
Migration Act 1958, ss 36, 65, 494C
Migration Regulations 1994, r 4.31(2)

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 1 September 2016 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 11 April 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. The material before the Tribunal indicates that the applicant was notified of the delegate’s decision by letter dated 1 September 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 applicant is taken to have been notified of the decision on 12 September 2016: s.494C of the Act.

3. As the applicant was not in immigration detention on the day the applicant was notified of the delegate’s decision, an application for review of the decision had to be made within 28 days, commencing on that day of notification: r.4.31(2) of the Migration Regulations 1994.The prescribed period to apply to the Tribunal for review ended on 9 October 2016 but as the last day of the prescribed period fell on a Sunday the applicant had until the end of the next day to lodge the application for review, i.e. until Monday 10 October 2016: s.36(2) of the Acts Interpretation Act 1901.

4. The Tribunal has taken into account  the applicant’s response by e mail on 7 May 2018 to a letter to her from the Tribunal inviting her comments on the validity of her application for review; essentially the applicant stated that her application for review was lodged out of time because she did not know she could appeal the decision. However as the application for review was not received by the Tribunal until 11 April 2018 it was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Ms Christine Long
   Member