1828236 (Refugee)

[2018] AATA 4365

1828236 (Refugee) [2018] AATA 4365 (1 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1828236

COUNTRY OF REFERENCE:                  Fiji

MEMBER:James Silva

DATE:1 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 01 November 2018 at 10:54am

CATCHWORDS
REFUGEE – China – invalid application – not lodged within the prescribed period – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 494C
Migration Regulations 1994 (Cth) 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 28 August 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 26 September 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 28 August 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, and she is taken to have been notified of the decision on 28 August 2018: s.494C of the Act.

3. As the applicant was not in immigration detention on the day she 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]. Therefore the prescribed period to apply for review ended on 24 August 2018.

4. The Tribunal wrote to the applicant on 16 October 2018, advising of its preliminary view that her application was not valid, as it was not lodged within the prescribed period. The Tribunal invited the applicant to comment on this, in writing, by 30 October. The Tribunal received no response to its letter.

5. As the application for review was not received by the Tribunal until 26 September 2018, the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   James Silva
   Member