2318948 (Refugee)

[2024] AATA 857

2318948 (Refugee) [2024] AATA 857 (19 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2318948

COUNTRY OF REFERENCE:                   Tonga

MEMBER:P. Maishman

DATE:19 February 2024

PLACE OF DECISION:  Perth

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

Statement made on 19 February 2024 at 3:22pm

CATCHWORDS
REFUGEE – protection visa – Tonga – application for review made more than 28 days after notification of visa refusal – no response to natural justice letter – 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 9 August 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 21 November 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 9 August 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 21 November 2023 the applicant lodged an application for review of the decision. On 24 November 2023 the Tribunal sent a Natural Justice letter to the review applicant concerning the application, inviting the applicant to make comments on whether a valid application had been made. The letter stated that the prescribed period to apply for review had ended on 5 September 2023. The letter stated that a response should be received by 8 December 2023. The Tribunal has not, to date, received a response to the invitation to comment.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 9 August 2023: s 494C of the Act. Therefore the prescribed period to apply for review ended on 5 September 2023.

6. As the application for review was not received by the Tribunal until 21 November 2023 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   P. Maishman
   Member