2007001 (Refugee)

[2020] AATA 2258

2007001 (Refugee) [2020] AATA 2258 (1 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2007001

COUNTRY OF REFERENCE:                   Thailand

MEMBER:James Silva

DATE:1 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 01 June 2020 at 11:43am

CATCHWORDS
REFUGEE – Protection Visa – Thailand – applicant was notified of the decision in accordance with the statutory requirements– application lodged out of time – application was not valid – no jurisdiction

LEGISLATION
Acts Interpretation Act 1901, s 36
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 1 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 12 April 2020. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 1 July 2019 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. It finds that the applicant is taken to have been notified of the decision on 1 July 2019: s.494C of the Act.

3. 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.[1] Therefore, the prescribed period to apply for review ended on 10 July 2019.

   [1] In DZAFH v Minister for Immigration [2017] FCCA 387, the Federal Circuit 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 decision: at [44] – [46].

4. 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 29 July 2019: s.36(2) of the Acts Interpretation Act 1901.

5. The Tribunal wrote to the applicant on 21 April 2020, advising of its preliminary view that her application was not valid, as it was not lodged within the prescribed period; and inviting her to comment. The Tribunal received no acknowledgement or reply.

6. As the application for review was not received by the Tribunal until 12 April 2020 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.

   James Silva
   Member