1905901 (Refugee)

[2019] AATA 5260

1905901 (Refugee) [2019] AATA 5260 (3 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1905901

COUNTRY OF REFERENCE:                   India

MEMBER:Nora Lamont

DATE:3 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 04 April 2019 at 10:05am

CATCHWORDS
REFUGEE – protection visa – India – application for review of refusal received out of time – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), rr 2.55, 4.31(2)

CASE

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 16 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 13 March 2019. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. Pursuant to r.4.31(2) of the Migration Regulation 1994, the period in which an application for review of a part 7-reviewable decision must be given to the Tribunal is 28 days, commencing on the day the applicant is notified of the decision. 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 incudes, 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 16 August 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. As the application was not received until 13 March 2019, the application is out of time.

4. The Tribunal finds that the applicant is taken to have been notified of the decision on 16 August 2018: r.2.55 of the Regulations. Therefore the prescribed period to apply for review ended on 12 September 2018.

5. As the application for review was not received by the Tribunal until 13 March 2019 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.

   Nora Lamont
   Member