2307189 (Refugee)

[2023] AATA 3324

2307189 (Refugee) [2023] AATA 3324 (7 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2307189

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Linda Holub

DATE:7 August 2023

PLACE OF DECISION:  Sydney

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

Statement made on 7 August 2023 at 2:31pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – application made more than 28 days after notification of visa refusal decision – acquaintance who assisted with application and created email address did not advise of refusal – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), s 65
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 7 December 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 24 May 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 7 December 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 7 December 2023, therefore, that is the date on which the applicant is taken to have been notified. On that basis, and in accordance with DZAFH v Minister for Immigration [2017] FCCA 387 the last day for lodging the application for review was 3 January 2023. As the review application was not received until 24 May 2023 it appears to be out of time. The applicant was provided until 10 October 2023 to make any comments. No response was received from the applicant.

5.    The applicant responded in a letter dated 26 June 2023. She stated that she was assisted in her application by an acquaintance who created an email address. She stated that when the application was refused that person overlooked the notification and did not advise her of the refusal until 24 May 2023.

6.    While the Tribunal is prepared to accept that the applicant’s acquaintance was assisting her with her application and did not advise her of the refusal until 24 May 2023, the Tribunal nevertheless, finds that the applicant is taken to have been notified of the decision on 7 December 2022: s 494C of the Act] Therefore the prescribed period to apply for review ended on 3 January 2023.

7.    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