1925514 (Refugee)

[2020] AATA 661

1925514 (Refugee) [2020] AATA 661 (20 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1925514

COUNTRY OF REFERENCE:                   Solomon Islands

MEMBER:Nicole Burns

DATE:20 February 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 20 February 2020 at 11:13am

CATCHWORDS
REFUGEE – protection visa – Solomon Islands – application for review lodged out of time – medical issue after review application period ended – no discretion to consider medical issue – 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 30 July 2019 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 11 September 2019. 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 July 2019 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 3 December 2019 the Tribunal wrote to the applicant inviting his comments on its preliminary view that his review application was lodged out of time, and therefore not valid.  On 12 December 2019 the Tribunal received an email from the applicant in which he attached a letter of the same date.  In that letter the applicant referred to a [medical condition] he suffered [in] October 2018 and noted that his (review) application was late due to ‘stress, trauma and frustrations with my mind (brain) not reacting fast’.  Whilst the Tribunal accepts the applicant had a [medical condition] in October 2018 and has sympathy for the applicant in this regard, it does not have any discretion when considering whether the review application was lodged out of time.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 30 July 2019: s.494C of the Act. Therefore the prescribed period to apply for review ended on 26 August 2019.

6. As the application for review was not received by the Tribunal until 11 September 2019 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Nicole Burns
   Member