2402679 (Refugee)

[2024] AATA 1760

2402679 (Refugee) [2024] AATA 1760 (3 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2402679

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Tania Flood

DATE:3 April 2024

PLACE OF DECISION:  Sydney

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

Statement made on 03 April 2024 at 11:03am

CATCHWORDS

REFUGEE – protection visa – Indonesia – review application out of time – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 494C
Migration Regulations 1994, r 4.31

CASES

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 20 December 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 17 February 2024. 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 20 December 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 26 February 2024 the Tribunal wrote to the applicant advising him that his application for review appears not to be a valid application as it was not lodged within the relevant time limit. The applicant was advised that pursuant to r.4.31(2) of the Regulations the period in which an application for review of a Part 7 – reviewable decision must be given to the Tribunal is 28 days, commencing on the day the applicant is notified of the decision. In DZAFH v Minister for Immigration (2017) FCCA 387, the Federal Circuit Court held that the prescribed period in r.4.31 commences on, and includes, the day the applicant is taken to have been notified of the decision: at [44]-[46]. The applicant was advised that as the primary decision was emailed to him on 20 December 2023 the last day for lodging the application for review was 16 January 2024. The applicant was invited to make any comments on whether a valid application for review has been made in writing by 12 March 2024.

5. On 1 March 2024 the applicant emailed the Tribunal apologising for the late lodgement of his application for review.  He stated that he failed to notice earlier the Department’s email.   The Tribunal has considered the applicant’s response but finds it does not raise any issues regarding breaches of the notification requirements.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 20 December 2023: s 494C of the Act. Therefore the prescribed period to apply for review ended on 16 January 2024.

7. As the application for review was not received by the Tribunal until 17 February 2024 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.

   Tania Flood
   Member