1824058 (Refugee)

[2018] AATA 3959

1824058 (Refugee) [2018] AATA 3959 (19 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1824058

COUNTRY OF REFERENCE:                  China

MEMBER:Mara Moustafine

DATE:19 September 2018

PLACE OF DECISION:  Sydney

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

Statement made on 19 September 2018 at 10:20am

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

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 2.55, 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 19 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 19 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. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 19 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. The Tribunal formed the preliminary view that it did not have jurisdiction because the application lodged on 19 August 2018 was not lodged within the relevant time limit. The primary decision notification letter, dated 19 April 2018, was emailed to the applicant on that day, meaning that 19 April 2018 was the date on which she was taken to have been notified. In accordance with DZAFH, the last day for lodging the application for review was 16 May 2018. As the application was not received until 19 August 2018, it appears to be out of time.

5. An officer of the Tribunal wrote to the applicant on 3 September 2018 inviting her to make any comments on the validity of the application for review by 17 September 2018.  The letter was despatched by email to the address provided by the applicant in her application.

6. However, no response was received from the applicant.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 19 April 2018: r.2.55 of the Regulations. Therefore the prescribed period to apply for review ended on 16 May 2018.

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

   Mara Moustafine
   Member