1814906 (Refugee)

[2018] AATA 2905

1814906 (Refugee) [2018] AATA 2905 (3 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1814906

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Brendan Darcy

DATE:3 July 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 03 July 2018 at 10:24am

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

LEGISLATION
Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth), r 4.31, Schedule 2

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 20 April 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 22 May 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. 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].

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 20 April 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 15 June 2018, the Tribunal emailed the applicant to invite him to comment on the validity of the visa application, and to do so by 29 June 2018. The Tribunal did not receive any response or submission either by the applicant or on the applicant’s behalf, either by 29 June 2018 or right up to the time of making this decision.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 20 April 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 17 May 2018.

6. As the application for review was not received by the Tribunal until 22 May 2018 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Brendan Darcy
   Member