1924241 (Refugee)

[2020] AATA 816

1924241 (Refugee) [2020] AATA 816 (22 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1924241

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Nora Lamont

DATE:22 January 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 22 January 2020 at 11:58am

CATCHWORDS
REFUGEE – protection visa – Fiji – application not made within required time – delegate’s decision notified by email in accordance with statutory requirements – applicant had surgery and did not read emails at the time – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 494C

Migration Regulations 1994 (Cth), r 4.31(2)

Acts Interpretation Act 1901 (Cth), s 36(2)

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 29 July 2019 to refuse to grant protection visas under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 30 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 29 July 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 applicant provided a submission to the Tribunal and stated that she had surgery and due to ongoing pain she did not read her emails. Secondly the applicant did not see the email from the Department until she was searching for an email address and when she saw it she was shocked. She asked the Department to re-send using a different date but they would not.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 29 July 2019: s.494C of the Act. Therefore the prescribed period to apply for review ended on 25 August 2019.

6. 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 26 August 2019: s.36(2) of the Acts Interpretation Act 1901.

7. As the application for review was not received by the Tribunal until 30 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

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

   Nora Lamont
   Member