2013700 (Refugee)

[2020] AATA 5520

2013700 (Refugee) [2020] AATA 5520 (24 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2013700

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Gabrielle Cullen

DATE:24 November 2020

PLACE OF DECISION:  Sydney

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

Statement made on 24 November 2020 at 11:09am

CATCHWORDS
REFUGEE – protection visa – Indonesia – application for review made out of time – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 16 July 2020 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 7 September 2020. 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 July 2020 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 a natural justice letter to the applicant on 9 September 2020, conveying its preliminary view that the application for review appeared to be invalid because it was not lodged within the relevant time limit. The Tribunal indicated that the primary decision was emailed to the applicant on 16 July 2020 and in accordance with DZAFH v Minister for Immigration (2017) FCCA 387 the last day for lodging the review was 12 August 2020. The letter noted the application for review was not received until 7 September 2020 and it appeared to be out of time. The Tribunal invited the applicant to submit any comments by 23 September 2020. No further response was received by the applicant as at the time of this decision.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 16 July 2020. Therefore, the prescribed period to apply for review ended on 12 August 2020. As the application for review was not received by the Tribunal until 7 September 2020 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Gabrielle Cullen
   Member