1932643 (Refugee)

[2020] AATA 646

1932643 (Refugee) [2020] AATA 646 (3 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1932643

COUNTRY OF REFERENCE:                   China

MEMBER:Meena Sripathy

DATE:3 March 2020

PLACE OF DECISION:  Sydney

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

Statement made on 03 March 2020 at 10:39am

CATCHWORDS
REFUGEE – protection visa – China – review application made out of time – 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 18 October 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 16 November 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. On 6 February 2020 the Tribunal wrote to the applicant to invite his comment on the validity of his application.  He was informed that as the primary decision was emailed to him on 18 October 2019 this was the date on which he is taken to have been notified, and therefore in accordance with the decision on the Federal Circuit Court in DZAFH v Minister for Immigration [2017] FCCA 387, the last day for lodging the review application was 14 November 2019, however the application was not received until 16 November 2019 and therefore appears to be out of time.

4. The applicant responded to the invitation to comment on 18 February 2020, acknowledging that he received the decision notification on 18 October 2019 but mistakenly calculated from the day after he received the email and thought the last day to submit the application was 16 November 2019.  He acknowledged that he submitted the application one day late due to his bad judgment and asked if he could be given a chance. 

5. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 18 October 2019 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

6. The Tribunal has considered the applicant’s response and his acknowledgement that he received the email notification on 18 October 2019 but mistakenly calculated the time frame to submit the application. Unfortunately the Tribunal has no discretion to extend the time limit for review regardless of the reason for the late lodgement.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 18 October 2019: s.494C of the Act. Therefore the prescribed period to apply for review ended on 14 November 2019.

8. As the application for review was not received by the Tribunal until 16 November 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.

   Meena Sripathy
   Member