2404789 (Refugee)

[2024] AATA 1332

2404789 (Refugee) [2024] AATA 1332 (3 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2404789

COUNTRY OF REFERENCE:                   India

MEMBER:Rachel Da Costa

DATE:3 May 2024

PLACE OF DECISION:  Sydney

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

Statement made on 03 May 2024 at 3:31pm

CATCHWORDS
REFUGEE – protection visa – India – review application made out of time – electronic communication – 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 24 May 2023 to refuse to grant protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The review application was lodged with the Tribunal on 13 March 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 24 May 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 3 April 2024, the Tribunal wrote to the applicants expressing the view that their application is not valid as it was not lodged within the relevant time limit. The letter explained the basis for this and also that it is a matter which must be determined by a Member. The applicants were invited to comment in writing on the validity of their application by 17 April 2024.

5. On 17 April 2024, the Tribunal received a written response from the [applicant]. He acknowledged that his application had been lodged out of time but stated that he expected the delegate’s decision to be mailed to him by post and was not expecting it to be sent by email. He was not monitoring his email regularly, only once or twice a month, but was monitoring his letterbox diligently. He eventually accessed his email on 13 March 2024 and found the notification. He was shocked to see it had been there since 24 May 2023. He made the mistake innocently and honestly and thinks fairness is important. He should not have to suffer because of a timing error and to reject his application due to a timing error would be unfair and not in keeping with the spirit of the law. He asks the Tribunal to take into account his naivety of emails when deciding when he actually received the email.

6. The Tribunal has considered the applicant’s response. The applicant has confirmed that he received the email notification on 24 May 2023 but claims he did not access his email until 13 March 2024, which is when he found the notification. The Tribunal finds the applicant received the email notification from the Department on 24 May 2023. Further, the Tribunal notes that in the applicant’s protection visa application form, which was lodged online, there is a section in the form entitled “Applicant electronic communication”. Under that heading, it states as follows:

   The Department prefers to communicate electronically as this provides a faster method of communication and delivery of information. If you (the applicant) agree that the Department can communicate with you electronically, provide an email in the space below.

7. The applicant provided his email address, which is the same email address the notification email was sent to on 24 May 2023 and is the same email address he has provided in connection with his application for review. In any event, the Tribunal does not have a discretion to extend the time within which an application for review may be lodged.

8. The Tribunal finds that the applicant is taken to have been notified of the decision on 24 May 2023: s 494C of the Act. Therefore the prescribed period to apply for review ended on 20 June 2023.

9. As the application for review was not received by the Tribunal until 13 March 2024 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

    Rachel Da Costa
    Member