2015699 (Refugee)

[2021] AATA 363

2015699 (Refugee) [2021] AATA 363 (18 January 2021)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  2015699

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Moira Brophy

DATE OF DECISION:  18 January 2021

DATE CORRIGENDUM

SIGNED:12 February 2021

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

On Page 1 of the Decision Record, it incorrectly reads that the date of decision was 18 January 2020.

This was a typographical error. The date of decision should read 18 January 2021.

Moira Brophy
Member

In accordance with s.431 of the Migration Act 1958, the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  2015699

COUNTRY OF REFERENCE:                   Fiji

MEMBER:  Moira Brophy

DATE:  18 January 2020

PLACE OF DECISION:  Sydney

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

Statement made on 18 January 2021 at 3:30pm

CATCHWORDS
REFUGEE – protection visa – Fiji – application for review made out of time – notification in accordance with statutory requirements – applicant unable to access emails at the time – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 66(2), 494B, 494C
Migration Regulations 1994 (Cth), r 4.31(2)

CASE
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64

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 2 April 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 20 October 2020. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

1. 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.

1. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 2 April 2020 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

1. The Tribunal wrote to the applicant on 18 November 2020 seeking her comments on its preliminary view that it does not have jurisdiction because the review application was lodged out of time. The applicant responded that she was unable to access her emails from the Department at the time.

1. The Tribunal has considered the notification letter and is satisfied that the applicant was notified of the decision in accordance with the statutory requirements of ss.494B and 494C of the Act and that it complied with s.66(2) of the Act, as it specified the criterion / provision upon which the visa was refused, gave written reasons, specified that the decision was reviewable by the Tribunal, the time in which the review application had to be lodged, who could apply for review, and where the review application could be made. The Tribunal is satisfied that this information was set out sufficiently clearly, as required by DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64.

1. The Tribunal finds that the applicant is taken to have been notified of the decision on 2 April 2020: s.494C of the Act. Therefore the prescribed period to apply for review ended on 29 April 2020.

1. As the application for review was not received by the Tribunal until 20 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

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

Moira Brophy Member