2013967 (Refugee)

[2020] AATA 5727

2013967 (Refugee) [2020] AATA 5727 (3 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2013967

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Alan McMurran

DATE:3 December 2020

PLACE OF DECISION:  Sydney

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

Statement made on 03 December 2020 at 4:20pm

CATCHWORDS
REFUGEE – protection visa – Fiji – application for review made out of time – applicant unable to access email – 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 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 23 July 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 15 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 5 August 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 Tribunal sent a natural justice letter to the applicant on 30 September 2020 containing the following information:

   “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 5 August 2020 meaning that 5 August
   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 1 September 2020. As the application was not received until 15 September 2020, it appears to be out of time.”

5. The applicant was asked to respond on or before 14 October 2020. The applicant responded by email received 13 October 2020, as follows:

   “Sir/ Madam

   I am writing in relation to my Protection Visa Application Review .

   Please Sir / Madam l am sincerely sorry for the late response for my review, I truly regret and am sorry I couldn't get my review application to your office any soonest. I did not have finances and am struggling financially because l don't have work due to my work restrictions decision and furthermore we are struggling with this pandemic. I really struggled in opening my email due to not having enough funds, I Will honestly admit that my application is genuine when I applied for a Protection Visa. When I later opened my emails when I had funds to do so the date for a reply to my review had truly been overdue passed its date to be submitted. I truly apologise for any inconvenience caused to my Application Review .

   I am truly sorry for the delay and am willing to submit to your office any details that will be relevant and information to boost my argument to application should you need me to do so, in regards to my personal circumstance that I will be facing which would be relevant to the review of the decision.

   Thanking you very Kindly

   [applicant name]”

6. The Tribunal has considered the applicant’s response, noting the applicant’s acknowledgement and acceptance of the matters referred to in the Tribunal’s letter.

7. The Tribunal further finds that it has no discretion to vary or extend the time for filing the application.

8. The Tribunal finds that the applicant is taken to have been notified of the decision on 5 August 2020: s.494C of the Act. Therefore, the prescribed period to apply for review ended on Tuesday 1 September 2020.

9. As the application for review was not received by the Tribunal until 15 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

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

    Alan McMurran
    Member