2014728 (Refugee)

[2020] AATA 6207

2014728 (Refugee) [2020] AATA 6207 (14 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2014728

COUNTRY OF REFERENCE:                   China

MEMBER:Hugh Sanderson

DATE:14 December 2020

PLACE OF DECISION:  Sydney

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

Statement made on 14 December 2020 at 3:17pm

CATCHWORDS
REFUGEE – Protection Visa – China – applicant was notified of the decision in accordance with the statutory requirements – application lodged out of time – no jurisdiction

LEGISLATION
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 3 September 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 1 October 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 3 September 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 wrote to the applicant on 2 October 2020 stating as follows:

   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 3 September 2020 meaning that 3 September 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 30 September 2020. As the application was not received until 1 October 2020, it appears to be out of time. However this is a matter which must be determined by a Member.

5. The applicant was required to respond to this information by 16 October 2020. At the time of this decision, the Tribunal has not received any response from the applicant.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 3 September 2020: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 30 September 2020.

7. As the application for review was not received by the Tribunal until 1 October 2020 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Hugh Sanderson
   Member