2013660 (Refugee)

[2020] AATA 6086

2013660 (Refugee) [2020] AATA 6086 (28 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2013660

COUNTRY OF REFERENCE:                   Turkey

MEMBER:Alan McMurran

DATE:28 September 2020

PLACE OF DECISION:  Sydney

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

Statement made on 28 September 2020 at 4:08pm

CATCHWORDS

REFUGEE – protection visa – Turkey – application made more than 28 days after notification of delegate’s decision – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth), r 4.31(2)

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 lodged on 4 September 2020 for review of a decision of a delegate of the Minister for Immigration on 18 March 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 September 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 18 March 2020 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’s visa history is set out in the Tribunal’s Decision Record on 31 August 2020 concerning refusal of a Bridging E (class WE) visa. The decision discloses in part that on 7 April 2020, the applicant presented to Sutherland Police in Sydney stating her intention to depart Australia.

5. The Tribunal record further discloses that on 11 May 2020, the applicant was apprehended by New South Wales transit police, identified as an unlawful non-citizen and subsequently detained and transferred to Villawood Immigration Detention Centre, where the applicant currently resides. The applicant has not disputed receiving the decision by letter from the Tribunal dated 18 March 2020.

6. On 10 September 2020, the applicant sent an email to the Tribunal in support of her application with an explanation as follows:

   i am [the applicant] with 2013660 case number. i=I am writing this letter to make my protection visa refusal notification clearly

   After my father die i move to sydney and became depressive. loose my hosue and job, i became homeless. my reasen related with financial problem

   with miss court and get refusal. I didnt have money to go melbourne. i am sorry about that...

   The applicant was referring to her failure to engage with the Department concerning her visa circumstances. No further or other information in support of the application has been received.

7. On 25 September 2020, the Tribunal sent a natural justice letter to the applicant. The Tribunal letter included the following:

   “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 18 March 2020 meaning that 18 March
   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 14 April 2020. As the application was not received until 4 September 2020, it appears to be out of time.”
   The applicant was asked to respond to the Tribunal on or before 9 October 2020.

8. On 25 September 2020, the Tribunal received the following email response from the applicant:

   I,[the applicant] wish to withdraw my application to review my protection visa decision

   [the applicant]

   25.10.2020

   Although dated 25.10.2020, the electronic receipt in the Tribunal evidences it was received on 25 September 2020.

9. The Tribunal accepts the email from the applicant as a response to its natural justice letter with the invitation to comment. No further or other information has been received from the applicant.

10. The Tribunal finds that the applicant was notified of the Department’s decision on 18 March 2020: s.494C of the Act. Therefore the prescribed period to apply for review ended on 14 April 2020.

11. As the application for review was not received by the Tribunal until 4 September 2020 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

    DECISION

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

    Alan McMurran
    Member