2214584 (Refugee)

[2023] AATA 629

2214584 (Refugee) [2023] AATA 629 (6 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2214584

COUNTRY OF REFERENCE:                   Philippines

MEMBER:Linda Holub

DATE:6 February 2023

PLACE OF DECISION:  Sydney

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

Statement made on 6 February 2023 at 5:46pm

CATCHWORDS

REFUGEE – protection visa – Philippines – review application out of time – no jurisdiction

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, rr 2.55, 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 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 29 April 2022 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 1 October 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 29 April 2022 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 indicating that it appeared the application is not a valid application as it was not lodged within the relevant time limit. The letter explained that the time limit is 28 days from the day on which the visa applicant is taken to have been notified of the primary decision. The letter outlined that as the primary decision was emailed on 29 April 2022, therefore, 29 April 2022 was the date on which the applicant is taken to have been notified. On that basis, the last day for lodging the application for review was 26 May 2022. As the application was not received until 1 October 2022 it appears to be out of time. The applicant was provided until 10 November 2022 to make any comments.

5. The applicant responded by email on 8 November 2022. He attached a letter explaining his circumstances at that time and provided a copy of a medical certificate dated 4 November 2022. It states that he attended the medical centre on the same date and that had depression and would be unfit for migration purposes from 30 March 2022 until 4 November 2022.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 29 April 2022: reg 2.55 of the Regulations. Therefore, the prescribed period to apply for review ended on 26 May 2022.

7. As the application for review was not received by the Tribunal until 1 October 2022 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.

   Linda Holub
   Member