2109143 (Refugee)

[2021] AATA 4482

2109143 (Refugee) [2021] AATA 4482 (27 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2109143

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Michael Hawkins AM

DATE:27 September 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 27 September 2021 at 6:18am

CATCHWORDS
REFUGEE – protection visa – Indonesia – review application made out of time – statutory requirements for notification of decision – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 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 16 December 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 18 July 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 material before the Tribunal indicates that the applicant was notified of the decision by letter dated 16 December 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 to the applicant on 19 July 2021 advising that it appears that his application for review is not a valid application, as it was not lodged within the relevant time limit. The applicant was invited to comment on the information by 2 August 2021.

5. The applicant responded to the invitation by email on 19 July 2021, stating:

   I apologize for applying for a review for the first time too late, even in covid situation very difficult to thingking clearly, and now i just realize that my visa already expire, and i check on my email i get visa refusal and I try to find someone to help me how to lodge application in tribunal and i just meet friend want to help, and lucky i can lodge application to tribunaI about my visa refusal decision, sincerely hope that my application for a review will be accepted by the AAT, Please help me and really sorry for my mistake about too late. (sic)

6. The Tribunal has considered the comments provided by the applicant in response to the invitation. The issue for the Tribunal to consider is whether he received a valid notification from the Department in relation to the delegate’s decision about his visa application. As explained above, the Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. Unfortunately, the Tribunal has no discretion in this matter. Once an applicant has been validly notified of the primary decision, the application for review must be lodged with the Tribunal within the relevant prescribed time period. The Tribunal has no power to extend the time limit.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 16 December 2020: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 12 January 2021.

8. As the application for review was not received by the Tribunal until 18 July 2021 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.

   Michael Hawkins AM
   Member