2100793 (Refugee)

[2021] AATA 5662

2100793 (Refugee) [2021] AATA 5662 (9 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2100793

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Cathrine Burnett-Wake

DATE:9 March 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 9 March 2021 at 11:37am

CATCHWORDS

REFUGEE – protection visa – Vietnam – review application 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 11 October 2018 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 25 January 2021. 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 30 May 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 29 January 2021, the Tribunal invited the applicant to comment on the validity of their application for review. The Tribunal’s letter relevantly provided:

   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 30 May 2020 meaning that 30 May 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 26 June 2020. As the application was not received until 25 January 2021, it appears to be out of time. However, this is a matter which must be determined by a Member.

5. On 3 February 2021, the applicant responded to the Tribunal’s letter. The applicant outlined that they never received mail from the Department sent out on 30 May 2020.

6. The Tribunal has reviewed the Department file and notes that the decision record and notification was sent to the applicant’s email address on record. As such, the Tribunal finds that the applicant is taken to have been notified of the decision on 30 May 2020: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 26 June 2020.

7. As the application for review was not received by the Tribunal until 25 January 2021 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.

   Cathrine Burnett-Wake
   Member