1921072 (Refugee)

[2019] AATA 6491

1921072 (Refugee) [2019] AATA 6491 (21 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1921072

COUNTRY OF REFERENCE:                  Thailand

MEMBER:K. Chapman

DATE:21 November 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 21 November 2019 at 12:12pm

CATCHWORDS
REFUGEE – protection visa – Thailand – application for review not made within 28 days of decision notification – not in immigration detention – no response to Tribunal correspondence – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 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 19 June 2019 to refuse to grant protection visas under s.65 of the Migration Act 1958 (‘the Act’). The review application was lodged by the first named applicant (‘the applicant’) with the Tribunal on 31 July 2019. For the following reasons, the Tribunal has found that it has no jurisdiction to review the primary decision.

2. 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 (‘the Regulations’).

3. The material before the Tribunal indicates that the applicant was notified of the primary decision by letter dated 19 June 2019 which was despatched by email to her. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The Tribunal notes the decision of the Federal Circuit Court in DZAFH v Minister for Immigration [2017] FCCA 387 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. As the applicant is taken to have received notification of the visa refusal decision on 19 June 2019, the prescribed period to apply for review ended on 16 July 2019.

5. In order to afford the applicant natural justice, by correspondence dated 12 September 2019, the Tribunal Registry wrote to her inviting her comment on the validity of the application for review. No response to that correspondence has been received by the Tribunal.

6. Following careful consideration of the evidence, the Tribunal finds that the applicant is taken to have been notified of the primary decision on 19 June 2019: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 16 July 2019. As the application for review was not received by the Tribunal until 31 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

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

   K. Chapman
   Member