1822654 (Refugee)

[2018] AATA 4212

1822654 (Refugee) [2018] AATA 4212 (23 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1822654

COUNTRY OF REFERENCE:                  China

MEMBER:James Silva

DATE:23 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 23 August 2018 at 5:15pm

CATCHWORDS
Refugee – Protection visa – China – review application out of time – no jurisdiction

LEGISLATION
Migration Act 1958, ss 65, 494C
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 6 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 6 August 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 decision by letter dated 6 March 2018, and dispatched by email on the same day. 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 6 March 2018: s.494C of the Act.

3. 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 Ministerfor 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]. Therefore the prescribed period to apply for review ended on 2 April 2018.

4. The applicant provided a statement with her review application. In it, she acknowledges that she ‘missed the 28 days for applying for AAT review’, and provides background information. In brief, she explained that she relied on an interpreter to prepare the protection visa application; that this person gave his/her address to the Department for correspondence; and that this person has since disappeared. As a result, the applicant was not aware of the Department’s refusal of her protection visa application, or the deadline for making a valid application for review. She found out only after contacting the Department through the Telephone Interpreter Service to enquire about her visa status.

5. The Tribunal wrote to the applicant on 14 August 2018, advising of its preliminary view that her application was not valid, as it was not lodged within the prescribed period, and inviting her to comment.

6. On 20 August 2018, the Tribunal received a newly completed review application form, which the applicant had signed on 15 August 2018. This appears to have been her response to the Tribunal’s letter of 14 August 2018. A Tribunal officer tried to contact the applicant via the mobile telephone number that she had provided, to clarify that the completed form was her only comment to the Tribunal’s letter. The applicant did not answer. The officer left a voicemail message. The Tribunal has received no further communication from the applicant.

7. For the reasons stated above, the applicant is taken to have been notified of the decision on 6 March 2018. This is irrespective of whether she actually received or sighted it, or was informed about it, or whether there were any factors (such as language difficulties or the reliance on third parties) that might explain her late application. Regulation.4.31(2) does not give the Tribunal discretion to waive or adjust the prescribed period within which a valid application for review may be made.

8. As the application for review was not received by the Tribunal until 6 August 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.

   James Silva
   Member