2311433 (Refugee)

[2023] AATA 4798

2311433 (Refugee) [2023] AATA 4798 (16 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2311433

COUNTRY OF REFERENCE:                   Samoa

MEMBER:Rachel Da Costa

DATE:16 October 2023

PLACE OF DECISION:  Sydney

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

Statement made on 16 October 2023 at 12:16pm

CATCHWORDS
REFUGEE – protection visa – Samoa – application for review made more than 28 days after notification of visa refusal decision – notification sent to email address of relative who helped with application – death and funeral of father-figure uncle – no discretion to extend time – 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 10 February 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 2 August 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 10 February 2023 and dispatched by email.

4. On 29 August 2023, the Tribunal wrote to the applicant and expressed the view that her application for review was not valid as it was not lodged within the relevant time limit. The applicant was invited to comment in writing on the validity of her application by 12 September 2023.

5. On 4 September 2023, the Tribunal received an email from the person named in the applicant’s application for review form as his authorised recipient. In her email, the authorised recipient stated that the applicant did not lodge her application for review on time because the email was sent to an email address which belongs to the relative that helped her with the application and during this time, the applicant was also facing the funeral of her uncle who was like a father to her. Based on the documents before the Tribunal, it appears that the notification letter and decision from the Department were successfully sent to the email address provided by the applicant in connection with her case. While the Tribunal is sympathetic to the applicant’s situation with the death of her uncle, the Tribunal does not have a discretion to extend the deadline for lodging an application for review.

6. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. The Tribunal finds that the applicant is taken to have been notified of the decision on 10 February 2023: s 494C of the Act. Therefore the prescribed period to apply for review ended on 9 March 2023.

7. As the application for review was not received by the Tribunal until 2 August 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.

   Rachel Da Costa
   Member