2305019 (Refugee)

[2023] AATA 2535

2305019 (Refugee) [2023] AATA 2535 (11 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2305019

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Wan Shum

DATE:11 July 2023

PLACE OF DECISION:  Sydney

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

Statement made on 11 July 2023 at 2:52pm

CATCHWORDS
REFUGEE – protection visa – Fiji – application for review made more than 28 days after notification of visa refusal decision – applicant not sent decision by person who assisted – visa application states applicant did not have assistance or authorised recipient – notification in accordance with statutory requirements – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 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 3 February 2023 to refuse to grant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 3 February 2023 and dispatched by email to the email address provided on the visa application form for receiving correspondence.

3. The applicant did not authorise another person to receive correspondence. 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).

4. The review application was lodged with the Tribunal on 9 April 2023.

5. An officer of the Tribunal wrote to the applicant inviting him to comment on the preliminary view that his application for review was out of time. The applicant explained in his response that the delay was due to not being sent the decision by the person who had assisted with lodging his Protection visa until after “the 21 days period of Appeal”. He apologised for the delay stating that he was “not aware on the communication of the decision of [his] Protection visa”.

6. The Tribunal has considered the response but is unable to find that it has jurisdiction as the information before it reflects that the applicant was notified of the decision in accordance with the statutory requirements. The visa application form reflects that he did not have assistance and had not authorised a person to receive communications about his application. In these circumstances, the applicant is taken to have been notified of the decision on 3 February 2023: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 2 March 2023.

7. As the application for review was not received by the Tribunal until 9 April 2023 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.

   Wan Shum
   Member