2307664 (Refugee)

[2023] AATA 3614

2307664 (Refugee) [2023] AATA 3614 (15 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2307664

COUNTRY OF REFERENCE:                   Solomon Islands

MEMBER:David McCulloch

DATE:15 August 2023

PLACE OF DECISION:  Sydney

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

Statement made on 15 August 2023 at 8:24am

CATCHWORDS
REFUGEE – protection visa – Solomon Islands – application for review made more than 28 days after notification of visa refusal decision – claim that application sent by registered post within time – no proof of delivery provided – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth), r 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 dependant.

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 2 May 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 31 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 2 May 2023 and dispatched by email. The Tribunal wrote to the applicant indicating that given the notification was emailed that it was deemed to have been received by the applicant on 2 May 2023. On that basis, the last day for lodging the application for review was 29 May 2023. However, as the application was not received until 31 May 2023 it appeared to be out of time. The applicant was given the opportunity to comment.

4. In response the applicant indicated that the review was sent to the Tribunal by registered post on 16 May 2023 and therefore should have arrived on time.

5. It is noted that Australia Post registered post would ordinarily involve acknowledgement on delivery that would be available to the applicant to provide the Tribunal if the application for review was sent by registered post. However, the applicant has not provided this proof of delivery to the Tribunal.  In the absence of such evidence Tribunal is not satisfied that the application for review was received by the Tribunal within the required timeframe.

6. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 2 May 2023: s 494C of the Act. Therefore the prescribed period to apply for review ended on 29 May 2023.

8. As the application for review was not received by the Tribunal until 31 May 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.

   David McCulloch
   Member