1911397 (Refugee)

[2020] AATA 1580

1911397 (Refugee) [2020] AATA 1580 (18 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1911397

COUNTRY OF REFERENCE:                   China

MEMBER:Linda Holub

DATE:18 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 18 May 2020 at 9:47am

CATCHWORDS
REFUGEE – protection visa – China – application made out of time – No jurisdiction

LEGISLATION
Acts Interpretation Act 1901 (Cth), s 36
Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth), r 4.31

CASES
BMY18 v Minister for Home Affairs [2019] FCAFC 189
DFQ17 v Minister for Immigration [2019] FCAFC 64
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 8 April 2019 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 7 May 2019. 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 8 April 2019 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 wrote to the applicant on 22 October 2019 advising him that it appeared his application was out of time, pursuant to r.4.31(2) of the Migration Regulations 1994 and the court judgment of DZAFH v Minister for Immigration [2017] FCCA 387. The Tribunal provided him until 6 November 2019 to make any comments. The Tribunal received no response from the applicant.

5.    On 11 November 2019 the Tribunal sent a further letter advising applicant that recent court judgments, including DFQ17 v Minister for Immigration [2019] FCAFC 64 and BMY18 v Minister for Home Affairs [2019] FCAFC 189, identified problems with the validity of notifications letter issued by the Department of Home Affairs for failing to clearly state the time period within which an application for review must be made. Therefore, his case had been re-assessed in light of this judgment and it would appear that the Tribunal has jurisdiction to accept their review application.

6.    On 14 April 2020 the Tribunal sent a further letter advising applicant there had been further court judgments, in particular BMY18 v Minister for Home Affairs [2019] FCAFC 189. The notification letter issued to him by the Department of Home Affairs has been re-assessed following these further court judgments. It would appear that he was validly notified under the Migration Act 1958, with the consequence that the application for review was not valid as it appeared to have been lodged outside of the prescribed timeframe. The Tribunal provided him until 29 April 2020 to make any comments. The Tribunal received no response from the applicant.

7.    The Tribunal finds that the applicant is taken to have been notified of the decision on 8 April 2019: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 5 May 2019.

8. As the last day of the prescribed period fell on a Sunday, the applicant had until the end of the next day that was not a Saturday, a Sunday or a holiday to lodge his or her application, i.e. until 6 May 2019: s.36(2) of the Acts Interpretation Act 1901.

9.    As the application for review was not received by the Tribunal until 7 May 2019 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

DECISION

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

Linda Holub
Member