2403569 (Refugee)

[2024] AATA 1293

2403569 (Refugee) [2024] AATA 1293 (2 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2403569

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Member Nathan Goetz

DATE:2 April 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 02 April 2024 at 11:19am

CATCHWORDS
REFUGEE – protection visa – Indonesia – review application made out of time – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 36, 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 made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the applicant a protection visa.

   BACKGROUND

2. The applicant is a female citizen of Indonesia presently located in Australia.

3. On 5 August 2023 the applicant applied for the visa. On 24 January 2024 the delegate refused to grant the visa. On 28 February 2024 an application was made to the Tribunal to review the decision.

   CONSIDERATION AND FINDINGS

4. The issue in this review is whether the Tribunal has jurisdiction to review the decision.

5. The letter notifying the applicant that the visa had been refused is dated 24 January 2024 and was sent to the applicant by email to [Email Address 1]. This was the email address the applicant provided in the visa application form as a contact email address for correspondence from the Department.

6. In the letter, the applicant was advised that the visa was refused because the applicant did not satisfy s 36(2) of the Act. The applicant was advised of the following under the ‘Review rights’ heading:

7. “The Department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review of this decision must be given to the AAT within the period of 28 calendar days, commencing on the day you are taken to have received this letter.

8. As this letter was sent by email, you are taken to have received it at the end of the day it was transmitted.

9. The time mentioned above in which you may apply to the AAT for merits review of this decision is prescribed by law and cannot be extended.”

10. 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). This meant that the review needed to be lodged with the Tribunal by 20 February 2024. The review was lodged with the Tribunal on 24 January 2024.

11. Given the timing of the review, the Tribunal wrote to the applicant on 14 March 2024 and invited her to comment on the validity of the review in writing by 28 March 2024. The applicant did not respond to that invitation.

12. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

13. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 24 January 2024 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

14. The Tribunal finds that the applicant is taken to have been notified of the decision on 24 January 2024: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 20 February 2024. There is no power in the Migration and Refugee Division of the Tribunal to extend time to make an invalid review application valid.

    CONCLUSION

15. As the application for review was not received by the Tribunal until 28 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

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

    Nathan Goetz

    
    

    Member