1918629 (Refugee)

[2019] AATA 6559

1918629 (Refugee) [2019] AATA 6559 (22 November 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1918629

COUNTRY OF REFERENCE:                  China

MEMBER:Mary Sheargold

DATE OF DECISION:  22 November 2019

DATE CORRIGENDUM

SIGNED:29 November 2019

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

1. The second sentence in paragraph 6 is deleted.

2. The following text is added to paragraph 6:

On 16 September 2019, the applicant responded to the Tribunal’s request and sought an extension of time to respond to the natural justice letter.  The Tribunal granted an extension of time to respond until 4 October 2019. On 4 October 2019 at 7:46pm, the applicant responded to the natural justice letter stating that he disagreed that his application for review had been lodged 1 day out of time, and that the term “at the end of the day” created confusion and it was not clear to him that on which day and moment the letter is considered received.  The applicant also argued that “it is clear to me that the Department of Home Affairs is using a formatted template providing the information.  The case officer should do more than using a broken template and provide me (and other unfortunate applicants who are refused a visa) clear, unambiguous and easily understandable information.  He argued that the Department had not fulfilled its lawful duty to inform him of its decision to refuse to grant the visa.  However, as set out in paragraph 3 above, the Tribunal is satisfied that the applicant was notified of the Department’s decision in accordance with statutory requirements.

Mary Sheargold
Member

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1918629

COUNTRY OF REFERENCE:                  China

MEMBER:  Mary Sheargold

DATE:  22 November 2019

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal does not have jurisdiction in this

matter.

Statement made on 22 November 2019 at 3:31pm

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

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 12 June 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 10 July 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 12 June 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 6 September 2019, a Tribunal officer wrote a natural justice letter to the applicant, stating that it appeared that the application had been lodged out of time. Specifically, the letter stated that pursuant to r.4.31(2) of the Regulations, 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 that the applicant is notified of the decision.

5. The letter referred to the Federal Circuit Court’s decision in DZAFH v Minister for Immigration [2017] FCCA 387, where the 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 Department’s decision. The letter stated that the primary decision was emailed to the applicant on 12 June 2019, and as such, the last date for lodging a review application with the Tribunal was 9 July 2019.

6. The letter invited the applicant to make any comments, in writing, as to whether a valid application had been made and invited him to do so by 20 September 2019. As at the date of this decision, no response has been received.

7. Based on the evidence before it, the Tribunal finds that the applicant is taken to have been notified of the decision on 12 June 2019: s.494C of the Act. Therefore the prescribed period to apply for review ended on 9 July 2019.

8. As the application for review was not received by the Tribunal until 10 July 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.

   Mary Sheargold
   Member

   Case Number 1918629  Page 2 of 2