2009334 (Refugee)

[2021] AATA 438

2009334 (Refugee) [2021] AATA 438 (12 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2009334

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Meena Sripathy

DATE:12 February 2021

PLACE OF DECISION:  Sydney

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

Statement made on 12 February 2021 at 5:20pm

CATCHWORDS
REFUGEE – protection visa – Fiji – application for review made one day out of time – no response to Tribunal’s invitation to comment – No jurisdiction

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

CASE
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 7 May 2020 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 4 June 2020. 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 22 June 2020 an officer of the Tribunal wrote to the applicant to comment on the issue of the validity of the review application because it was not lodged within the relevant time limit. The applicant was advised that the period in which an application for review of a Part 7-reviewable decision must be given to the Tribunal is 28 days (under r.4.31(2) of the Migration Regulations), commencing on the day the applicant is notified of the decision. 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]. The applicant was advised that the primary decision was emailed to him on 7 May 2020 meaning that 7 May 2020 was the date on which she is taken to have been notified. In accordance with DZAFH, the last day for lodging the application for review was 3 June 2020 but the application was not received until 4 June 2020 and therefore appears to be lodged out of time. He was invited to make any comments on whether a valid application was made, by 6 July 2020.

4. To date no response has been received by the Tribunal.

5. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 7 May 2020 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 finds that the applicant is taken to have been notified of the decision on 7 May 2020: s.494C of the Act. Therefore the prescribed period to apply for review ended on 3 June 2020.

7. As the application for review was not received by the Tribunal until 4 June 2020 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.  Unfortunately, the Tribunal has no discretion to extent the time period in which the application must be made.

   DECISION

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

   Meena Sripathy
   Member