2013469 (Refugee)

[2020] AATA 5506

2013469 (Refugee) [2020] AATA 5506 (7 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2013469

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Alan McMurran

DATE:7 December 2020

PLACE OF DECISION:  Sydney

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

Statement made on 07 December 2020 at 11:08am

CATCHWORDS
REFUGEE – protection visa – Fiji – application made more than 28 days after department’s notification of refusal – bridging visa ceased naturally – No jurisdiction

LEGISLATION
Acts Interpretation Act 1901 (Cth), s 36
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 dependants.

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 June 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 31 August 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. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 29 June 2020 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 14 September 2020, the Tribunal sent a natural justice letter to the applicant which included the following:

   “You indicated on your application form that you wished the Department to reconsider
   your bridging visa. The Department’s records show that you were granted a Bridging
   visa C on 16 April 2020, which ceased naturally on 3 August 2020. As it is not a visa or
   cancellation decision, this is not a decision that can be reviewed by us.

   You provided a copy of the Department’s refusal of your Protection visa application,
   dated 29 June 2020.

   It appears that your application is not a valid application as it was not lodged within the
   relevant time limit. Pursuant to r.4.31(2) of the Migration Regulations 1994, the period
   in which an application for review of a Part 7-reviewable decision must be given to the
   Tribunal is 28 days, 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 primary decision was emailed to you on 29 June 2020 meaning that 29 June 2020
   was the date on which you are taken to have been notified. In accordance with
   DZAFH, the last day for lodging the application for review was 27 July 2020. As the application was not received until 31 August 2020, it appears to be out of time.”

5. The applicant was invited to respond by 28 September 2020.

6. On 27 September 2020, the applicant sent an email stating: “With reference to your letter on the 14th of September 2020, I hereby requesting the Department if Home Affairs (AAT) to please re-grant the Bridging Visa C which was initially granted to me”. The respondent made no submissions as to the timing of this application, raised in the Tribunal’s letter.

7. The Tribunal finds that applicant’s Bridging visa C ceased on 3 August 2020. There is no application before the Tribunal concerning the applicant’s Bridging visa, and which is a matter for the Department.

8. The Tribunal finds that the applicant is taken to have been notified of the Department’s decision on 29 June 2020: s.494C of the Act. Therefore, the prescribed period to apply for review of that decision ended on 26 July 2020.

9. 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 27 July 2020: s.36(2) of the Acts Interpretation Act 1901.

10. As the application for review was not received by the Tribunal until 31 August 2020 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

    DECISION

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

    Alan McMurran
    Member