1835740 (Refugee)

[2019] AATA 1751

1835740 (Refugee) [2019] AATA 1751 (30 January 2019)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1835740

COUNTRY OF REFERENCE:                  Thailand

MEMBER:Peter Vlahos

DATE:30 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 30 January 2019 at 10:32am

CATCHWORDS

REFUGEE – protection visa – Thailand – Application made out of time – No jurisdiction

LEGISLATION

Migration Act 1958 (Cth), s 494C
Migration Regulations 1994 (Cth), 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 22 October 2018 to refuse to grant protection visas under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 5 December 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 Tribunal wrote to the applicant on 10 January 2019[1] advising the applicant that his application for review had not been lodged within the required time limit. The time limit was 28 days from the date the applicant had been notified of the primary decision. The Tribunal from the information on its file notes, that the primary decision was emailed on 22 October 2018, and on that basis that date was the date on which the applicant was taken to have been notified. Therefore, the last date for lodging an application for review was 18 November 2018. However, the application for review was received by the Tribunal on 5 December 2018.

   [1] AAT File see Folio [64]

4. Also, in its letter dated 10 January 2019, the applicant was provided with the opportunity to provide written reasons on whether a valid application had been submitted to the Tribunal, and those reasons should be forwarded to the Tribunal by the 24 January 2019.

5. On 22 January 2019,[2] the applicant’s Solicitors wrote to the Tribunal an email stating that he had provided his application for review of the Department’s decision within the required time limit as provided for by the Act because the applicant had poor reading skills and did not understand the contents of the refusal notification> while the Tribunal sympathises with the applicant’s situation, the applicant was able at any stage (being limited in her English language skills) engage a professional as she has subsequently done to assist her with the process concerning her visa issues. The responsibility was hers to take from the first stages when she contemplated bringing this matter before the Tribunal.

   [2] Ibid see folio [67]

6. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 22 October 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 22 October 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 18 November 2018.

8. As the application for review was not received by the Tribunal until 5 December 2018 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Peter Vlahos
   Member