2112079 (Refugee)

[2021] AATA 4559

2112079 (Refugee) [2021] AATA 4559 (6 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2112079

COUNTRY OF REFERENCE:                   Thailand

MEMBER:David Barker

DATE:6 October 2021

PLACE OF DECISION:  Sydney

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

Statement made on 06 October 2021 at 4:11pm

CATCHWORDS
REFUGEE – protection visa – Thailand – review application made out of time – valid notification of decision – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 66, 494B, 494C
Migration Regulations 1994 (Cth), r 4.31

CASES
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64

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 27 July 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 9 September 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 27 July 2021 and dispatched by email. A change of contact details or change of authorised recipient form was submitted to the Department of Home Affairs (the Department), on 20 May 2020, during the course of the visa application. The Department notified the visa refusal to the review applicant by email to the email address provided on the change of contact details form. The Tribunal has considered the notification letter and is satisfied that the applicant was notified of the decision in accordance with the statutory requirements of ss.494B and 494C of the Act and that it complied with s.66(2) of the Act, as it specified the criterion / provision upon which the visa was refused, gave written reasons, specified that the decision was reviewable by the Tribunal, the time in which the review application had to be lodged, who could apply for review, and where the review application could be made. The Tribunal is satisfied that this information was set out sufficiently clearly, as required by DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The Tribunal formed the preliminary view the review application was lodged out of time. It wrote to the applicant on 13 September 2021 seeking her comments.  The applicant provided a response on 23 September 2021, in which she provided evidence she was hospitalised between 26 June 2021 and 28 June 2021, during which time  she underwent surgery for a hernia. The applicant  explained  that after her discharge from hospital she was recuperating and did not check her emails. The applicant contends that, when she did manage to check her email she found out that her protection visa application was refused and that she had exceeded the time limit to request a  review of the refusal decision.  The applicant  explained that it was also during the period of COVID19 lockdown and that she had difficulties in seeking help and advice on her situation.

5. The Tribunal has considered the comments provided in response to the natural justice letter.  The circumstances described are very unfortunate and the Tribunal acknowledges the difficult circumstances confronting the applicant.  However, 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 period.  The Tribunal has no power to extend the time limit. 

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 27 July 2021: s.494C of the Act. Therefore the prescribed period to apply for review ended on 23 August 2021.

7. As the application for review was not received by the Tribunal until 9 September 2021 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.

   David Barker
   Member