1922015 (Refugee)

[2019] AATA 6501

1922015 (Refugee) [2019] AATA 6501 (23 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1922015

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Kira Raif

DATE:23 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 23 October 2019 at 3:31pm

CATCHWORDS
REFUGEE – Protection Visa – Fiji – application lodged out of time – no jurisdiction

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

CASES

DFQ17 v Minister for Immigration (2019) FCAFC 64

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 11 July 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 8 August 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 11 July 2019 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. In particular, the Tribunal has formed the view that the notification was not affected by errors set out in DFQ17 v Minister for Immigration (2019) FCAFC 64. The Tribunal notes that the notification letter was sent via email and the information specifying the prescribed period and when the notice is taken to have been received are in consecutive paragraphs under the same heading ‘Review Rights’.

4. The Tribunal wrote to the applicant on 2 September 2019 seeking his comments on the jurisdiction issue. The applicant replied on 16 September 2019 stating that he had misunderstood the period and miscalculated the dates. The Tribunal acknowledges that evidence but has no discretion to waive the statutory requirements.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 11 July 2019: s.494C of the Act. Therefore the prescribed period to apply for review ended on 7 August 2019. As the application for review was not received by the Tribunal until 8 August 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.

   Kira Raif
   Senior Member