1811118 (Refugee)

[2018] AATA 1974

1811118 (Refugee) [2018] AATA 1974 (18 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1811118

COUNTRY OF REFERENCE:                  China

MEMBER:David McCulloch

DATE:18 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 18 May 2018 at 2:14pm

CATCHWORDS
Refugee – Protection Visa – China – Application not made within required timeframe – Tribunal does not have jurisdiction

LEGISLATION
Acts Interpretation Act 1901 (Cth) 36(2)
Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth), 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 19 March 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 19 April 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 19 March 2018 and dispatched by email.

4. The Tribunal wrote to the applicant on 3 May 2018 indicating, based on the manner on which the refusal decision was sent, that the applicant was taken to have received the notification on 19 March 2018. It was indicated that, based on Regulations the applicant had until 16 April 2018 to lodge the application for review.  On the basis that the application was not received until 19 April 2018, the preliminary view of the Tribunal was that it had been lodged out of time. The applicant was given the opportunity to respond to this preliminary view of the Tribunal.

5. The applicant responded by email on 11 May 2018 indicating that she was scheduled to submit her review before 16 April 2018 but she caught a very serious flu and migraine and could not act because she was dizzy. The applicant provided a Medical Certificate indicating that she was unable to attend work from 13 April 2018 until 19 April 2018.

6. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

7. The Tribunal regrets that the applicant had an illness. Nevertheless, the obligation to lodge the application for review within the required timeframe is absolute, and the Tribunal has no discretion to vary the time limits. Given the importance of time limits, the applicant needed to have made arrangements, notwithstanding her illness, to lodge the application within the required timeframes.

8. The Tribunal finds that the applicant is taken to have been notified of the decision on 19 March 2018: therefore the prescribed period to apply for review ended, subject to what is indicated below, on 15 April 2018.

9. 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 Sunday or a holiday to lodge her application, i.e. until 16 April 2018: s.36(2) of the Acts Interpretation Act 1901.

10. As the application for review was not received by the Tribunal until 19 April 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.

    David McCulloch
    Member