2103935 (Refugee)

[2021] AATA 3069

2103935 (Refugee) [2021] AATA 3069 (31 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2103935

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Gabrielle Cullen

DATE:31 May 2021

PLACE OF DECISION:  Sydney

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

Statement made on 31 May 2021 at 1:00pm

CATCHWORDS

REFUGEE – protection visa – Thailand – application for review made more than 28 days after notification of department’s decision – no response to tribunal’s natural justice letter – No jurisdiction

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 4.31

CASE

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 22 February 2021 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 26 March 2021. 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 a natural justice letter to the applicants on 21 April 2021, 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 22 February 2021 and in accordance with DZAFH v Minister for Immigration (2017) FCCA 387 the last day for lodging the review was 22 March 2021. The letter noted the application for review was not received until 26 March 2021 and it appeared to be out of time. The Tribunal invited the applicant to submit any comments by 5 May 2021. The applicant has not responded to this letter.

4. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 22 February 2021 and it was dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 22 February 2021. Therefore, the prescribed period to apply for review ended on 22 March 2021. As the application for review was not received by the Tribunal until 26 March 2021 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