1817263 (Refugee)

[2018] AATA 2313

1817263 (Refugee) [2018] AATA 2313 (28 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1817263

COUNTRY OF REFERENCE:                  Thailand

MEMBER:Justin Meyer

DATE:28 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 28 June 2018 at 11:24am

CATCHWORDS
Refugee – Protection visa – Thailand – Applicant out of time – No jurisdiction

LEGISLATION
Migration Act 1958, ss 65, 494C
Migration Regulations 1994, r 4.31

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 16 May 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 13 June 2018. 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 16 May 2018 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 made the following submission on June 19, 2018:

   I just received your letter of 18 June notifying me of your decision that my Application for an AAT Review of the refusal to grant me a Protection Visa is invalid, and read it with both surprise and more bitter disappointment.

   I do not dispute your claim that you sent the refusal notice by email on 16 May, and presumably, it was available to me on that date also. However, I don’t get much email and don’t check it every day. I did not actually download and read this email until Saturday, 19 May. I know that because after reading it I immediately called some friends to help me figure out what to do. I was, of course, very disappointed that my application for a review has been considered invalid for missing a deadline by one day. Because of my limited funds I am trying to work my way through this entire, complex process primarily by myself with only help and advice from friends. I cannot afford to hire a lawyer to help me. That, of course, means I am completely unfamiliar with the process and procedures involved. It took me some time to learn there was an AAT Review process I could ask for, and then more time to figure out how to do that. I finally discovered the AAT website and was eventually able to put down in a letter new and more detailed information about my claim which I did not include in my original application.

   I knew I was under some kind of deadline during this part of the process, but for some reason I thought it was a 30-day deadline from the date of the letter, not a 28-day deadline. I had a clerk type up my letter and fill out the online AAT Review Application and thought when we had submitted everything on Jun 13th we had done so before what I thought was the 30-day deadline of Jun 15th.

   In any event, I acknowledge my mistake in thinking I had a 30-day and not a 28-day deadline. I can only humbly appeal to you to accept my application even though it is one day late so the additional and more detailed information I’ve provided can be considered during a review. I am confident once you more fully understand my situation you will grant me the Protection Visa I so desperately need.

   Please reconsider your preliminary assessment of the validity of my AAT Review Application. I know it is a matter of enforcing rules to you, but for me it is a matter of life and death.

   Sincerely,

   [Applicant name]

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 16 May 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 12 June 2018.

6. The applicant does not dispute the arrival of the notification from the Tribunal. The Tribunal has no discretion and the application was received outside of the prescribed period.

7. As the application for review was not received by the Tribunal until 13 June 2018 the application for review was not made in accordance with the relevant legislation and xthe Tribunal has no jurisdiction in this matter.

   DECISION

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

   Justin Meyer
   Member