2201819 (Refugee)

[2022] AATA 2256

2201819 (Refugee) [2022] AATA 2256 (31 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Minjia Rao (MARN: 1464628)

CASE NUMBER:  2201819

COUNTRY OF REFERENCE:                   Venezuela

MEMBER:Kira Raif

DATE:31 May 2022

PLACE OF DECISION:  Sydney

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

Statement made on 31 May 2022 at 12:36pm

CATCHWORDS
REFUGEE – protection visa – Venezuela – application for review made more than 28 days after notification of visa refusal decision – claim that agent failed to lodge application and did not comply with code of conduct – no discretion to waive requirement – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth), rr 4.31(2)

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 dependants.

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 23 December 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 10 February 2022. 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 23 December 2021 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. The Tribunal finds that the applicant is taken to have been notified of the decision on 23 December 2021: s 494C of the Act. Therefore the prescribed period to apply for review ended on 19 January 2022. The application for review was not received by the Tribunal until 10 February 2022.

4. In his submission to the Tribunal in response to the natural justice letter the applicant explains, essentially, that his previous migration agent failed to lodge the application and had not complied with the Agents’ Code of Conduct. The applicant provided a declaration to the Tribunal outlining his interactions with the agent. The Tribunal acknowledges that evidence btu has no discretion  to waive the period within which a valid application can be lodged.

5. The Tribunal finds that the application for review was not made in accordance with the relevant legislation. The Tribunal has no jurisdiction in this matter.

   DECISION

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

   Kira Raif
   Senior Member