1836679 (Refugee)

[2019] AATA 1758

1836679 (Refugee) [2019] AATA 1758 (1 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1836679

COUNTRY OF REFERENCE:                  Thailand

MEMBER:Peter Vlahos

DATE:1 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 01 February 2019 at 9:47am

CATCHWORDS

REFUGEE – protection visa – Thailand – lateness due to lack of knowledge – time limit – requires seeker to seek assistance of a professional –  consulted a person who claimed to be a visa expert – did not exercise good judgment in choosing an ‘expert’ – responsibility of applicant – no jurisdiction   

LEGISLATION

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

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 9 November 2016 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 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 material before the Tribunal indicates that the applicant was notified of the decision by letter dated 9 November 2016 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 20 December 2018[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 9 November 2016, 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 6 December 2016. However, the application for review was received by the Tribunal on 13 December 2018. Also, in its letter dated 20 December 2018, 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 3 January 2019.

   [1] AAT File

5. On 3 January 2019 the applicant wrote to the Tribunal stating that his application’s lateness was due to his lack of knowledge of the English language and that he had consulted a person ‘who claimed to be a visa expert’. Indeed, the seeking of asylum for whatever reason requires the seeker to seek assistance of a professional – at certain times – if not always. The applicant did so on this occasion but did not exercise good judgement in choosing an ‘expert’ who would provide sound, responsible and diligent advice and oversee the process responsibly on his behalf. That was the responsibility of the applicant from the time his visa application was refused by the Department but he neglected that responsibility. 

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 9 November 2016:s.494C of the Act. Therefore the prescribed period to apply for review ended on 6 December 2016.

7. As the application for review was not received by the Tribunal until 13 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

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

   Peter Vlahos
   Member