2216210 (Refugee)

[2023] AATA 641

2216210 (Refugee) [2023] AATA 641 (14 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2216210

COUNTRY OF REFERENCE:                   Cambodia

MEMBER:Alison Murphy

DATE:14 February 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 14 February 2023 at 4:26pm

CATCHWORDS
REFUGEE – protection visa – Cambodia – application for review made more than 28 days after notification of visa refusal decision – agent did not use applicant’s correct contact details and disappeared without notifying him of department’s request for further information or refusal – visa application indicates all correspondence should be sent to applicant at supplied email address – no jurisdiction

LEGISLATION
Migration Act 1959 (Cth), ss 65, 494B(5), 494C
Migration Regulations 1994 (Cth), r 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 28 June 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 4 November 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 28 June 2022 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 14 November 2022, a Tribunal officer wrote to the applicant advising that it appeared the review application was not a valid application as it was not lodged within the relevant time limit.  On 22 November 2022, the applicant’s nephew and representative responded (in summary) to the effect that the applicant suffers from medical conditions; that he used an agent to apply for the visa and that agent did not use his correct details or email address and disappeared without notifying of the department’s request for further information or refusal notification; and that when the Department didn’t receive a response from either the applicant’s personal email or that given by his agent the Department should have ‘gone the extra mile’ and attempted to contact him by mail or phone.   

5. Section 494B of the Act sets out the methods by which the Minister gives documents to a person, including by transmitting the document by the last email address provided to the Minister for the purposes of receiving the document (s 494B(5)). The applicant signed the visa application, indicating in that visa application that all correspondence should be sent to himself. In that visa application the applicant gave consent to the Department communicating with him by email to [email address]. The Departmental file indicates the refusal notification was sent to the applicant at that email address on 28 June 2022. While the Department did not attempt to further correspond with the applicant by mail or telephone, it was not obliged to do so.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 28 June 2022: s 494C of the Act. Therefore the prescribed period to apply for review ended on 25 July 2022. The Tribunal acknowledges the circumstances in which the application was lodged out of time, but the Tribunal has no power to extend the time to lodge a valid review application.

7. As the application for review was not received by the Tribunal until 4 November 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.

   Alison Murphy
   Member