2116138 (Refugee)

[2022] AATA 835

2116138 (Refugee) [2022] AATA 835 (18 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2116138

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Steven Griffiths

DATE:18 February 2022

PLACE OF DECISION:  Adelaide

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

Statement made on 18 February 2022 at 2:32pm
CATCHWORDS
REFUGEE – Protection Visa – Thailand – applicant was notified of the decision in accordance with the statutory requirements– application lodged out of time – no jurisdiction

LEGISLATION
Acts Interpretation Act 1901 (Cth), s 36(2)
Migration Act 1958, ss 65, 494C
Migration Regulations 1994, 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 Home Affairs on 6 September 2021 to refuse to grant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The review application was lodged with the Tribunal on 8 November 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: reg 4.31(2) of the Migration Regulations 1994 (Cth) (the Regulations).

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 6 September 2021 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 notes in a submission of the applicant of 29 November 2021 the email address used for this notification was the one provided by the applicant.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 6 September 2021: s 494C of the Act. Therefore the prescribed period to apply for review ended on 3 October 2021.

6. As the last day of the prescribed period fell on a Sunday, the applicant had until the end of the next day that was not a Sunday or a holiday to lodge her application, i.e. until 5 October 2021: s 36(2) of the Acts Interpretation Act 1901 (Cth).

7. The Tribunal notes a natural justice letter was sent to the applicant on 18 November 2021 with details that the review application had been lodged after the prescribed period, while providing the applicant until 2 December 2021 to make a submission.

8. The Tribunal notes the applicant provided a submission on 29 November 2021, stating she had changed her email address, and while confirming this with the Humanitarian Program of the Department of Home Affairs and became aware on 8 November 2021 that the refusal decision had been issued on her protection visa. 

9. The Tribunal notes it is the responsibility of applicants at all times to ensure that accurate details on their contact information is provided to the Department and Tribunal. 

10. As the application for review was not received by the Tribunal until 8 November 2021 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

    DECISION

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

    Steven Griffiths
    Member