1911796 (Refugee)

[2019] AATA 6587

1911796 (Refugee) [2019] AATA 6587 (18 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1911796

COUNTRY OF REFERENCE:                   China

MEMBER:Bridget Cullen

DATE:18 October 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 18 October 2019 at 4:58pm

CATCHWORDS

REFUGEE – protection visa – China – review application out of time – no jurisdiction

LEGISLATION

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

CASES

Beni v MIBP [2018] FCAFC 228
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 9 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 12 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 9 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. On 2 September 2019, the following was communicated to the applicant:

   “It appears that your application is not a valid application as it was not lodged within the relevant time limit. Pursuant to r.4.31(2) of the Migration Regulations 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 includes, the day the applicant is taken to have been notified of the decision: at [44] – [46].

   The primary decision was emailed to your authorised recipient on 9 April 2019 meaning that 9 April 2019 was the date on which you are taken to have been notified. In accordance with DZAFH, the last day for lodging the application for review was 6 May 2019. As the application was not received until 12 May 2019, it appears to be out of time. However this is a matter which must be determined by a Member.”

5. On 10 September 2019, the Applicant provided a comment on the above, with the following:

   “I acknowledge receipt of your letter dated on 2 September 2019 with invitation to comment on validity of application for review lodged on 12 May 2019. As you mentioned that the primary decision was emailed to my authorised recipient on 9 April 2019, it was not emailed to myself. My agent is located in [Suburb 1], unfortunately it has been closed down by Department of Home Affairs out of my expectation. I only learned from the letter of Medicare send to me notifying that my Medicare will be expired in a certain days, at that point when I started to look for other agent to help with my case, and my appeal is lodged to AAT. At that time I checked in the VEVO in migration website that I was still holding a valid visa, I believed that my application for review is still in the prescribed time frame.

   It would be appreciated if you could take my situation into your consideration and exercise your discretion on my review application so that I could have a chance to be heard.  

6. The Tribunal has considered the Applicant’s submissions. However, the Tribunal is unable to extend the period of time for which an application can be lodged: Beni v MIBP [2018] FCAFC 228.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 9 April 2019: s.494C of the Act. Therefore the prescribed period to apply for review ended on 6 May 2019.

8. As the application for review was not received by the Tribunal until 12 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

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

   Bridget Cullen
   Member