2302396 (Refugee)

[2023] AATA 2371

2302396 (Refugee) [2023] AATA 2371 (1 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2302396

COUNTRY OF REFERENCE:                   Tonga

MEMBER:Peter Papadopoulos

DATE:1 May 2023

PLACE OF DECISION:  Sydney

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

Statement made on 01 May 2023 at 4:54pm

CATCHWORDS
REFUGEE – protection visa – Tonga – application made more than 28 days after notification of refusal decision – illness and forgetting to apply – member of particular social group – homosexual man – no jurisdiction

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

CASE
DZAFH v Minister for Immigration [2017] FCCA 387

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 January 2023 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 22 February 2023. 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 January 2023 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 15 March 2023, the Tribunal wrote to the applicant explaining that appears that his application was not a valid application as it was not lodged within the relevant time limit. Pursuant to r.4.31(2) of the Migration Regulations 1994, the period in which an application for review of a Part 7-reviewable decision must be given to the Tribunal is 28 days, commencing on the day the applicant is notified of the decision. In DZAFH v Minister for Immigration [2017] FCCA 387, the Federal Circuit Court held that the prescribed period in r.4.31 commences on, and includes, the day the applicant is taken to have been notified of the decision: at [44] – [46].

5. The primary decision was emailed to the applicant on 23 January 2023 meaning that 23 January 2023 was the date on which he is taken to have been notified. In accordance with DZAFH, the last day for lodging the application for review was 20 February 2023. As the application was not received until 22 February 2023, it appears to be out of time.

6. The applicant was invited to comment on this information, in writing, by 29 March 2023. On 16 March 2023, the applicant wrote to the Tribunal, in part, as follows:

   First of all I humbly apologize for the delay, this is due to the fact that I was not well and I end up forgetting to put in my application on time. I humbly begging your authority to please help consider the reviewing of my application via tribunal.

   I got no place to go back to Tonga to live and recently have an affair with another man whom is here in Australia and currently living closer to my home. My uncle whom I am living with here in Australia finds out about it. I have never spoken to anyone one about my marital status as I have been worried about my family back home having to find out about my situation. My current situation is very sad, not only because back home is very poor and now with my circumstances as a gay person, I am worried of so many things.

   I am humbly asking your authority to please review my case I really do not want to end up facing all sorts of embarrassment saying by our community and get bully by them because of my marital status.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 23 January 2023 per s 494C of the Act. Therefore, the prescribed period to apply for review ended on 20 February 2023.

8. While the Tribunal has considerable sympathy for the applicant, as the application for review was not received by the Tribunal until 22 February 2023, the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Peter Papadopoulos
   Member