1823995 (Refugee)

[2018] AATA 4027

1823995 (Refugee) [2018] AATA 4027 (12 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1823995

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Alison Mercer

DATE:12 September 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 12 September 2018 at 10:18am

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

LEGISLATION
Migration Act 1958, ss 65, 494C
Migration Regulations 1994, r 4.31

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 18 July 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 18 August 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. On 24 August 2018, the Tribunal wrote to the applicant to invite him to comment on the validity of his review application. In particular, the letter advised him that it appeared that his review application was invalid as it had been lodged outside the relevant time limit set out in r.4.31(2) of the Regulations, which prescribed a 28 day period commencing on the date on which he was notified of the decision (the date that the email notification of the refusal of his protection visa was sent). The letter noted that the refusal decision was emailed to the applicant on 18 July 2018, and therefore the last day for lodgment of the review application was 14 August 2018. However, as his review application was received by the Tribunal on 18 August 2018, it appeared to be out of time. The applicant was advised that he could provide comments or a response to this issue by 7 September 2018, and that any response or comments received would be considered by a Tribunal Member, who would ultimately determine whether the review application had been validly lodged.

4. The Tribunal did not receive any response or comments from the applicant by 7 September 2018, and has not received any further communication from him to date.  It is satisfied that its letter of 24 August 2018 was sent to his nominated email address for correspondence as listed in his review application, and was not returned to the Tribunal as ‘undelivered’ or ‘undeliverable.’

5. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 18 July 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 18 July 2018: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 14 August 2018.

7. As the application for review was not received by the Tribunal until 18 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

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

   Alison Mercer
   Member