2410227 (Refugee)

[2024] AATA 3798

2410227 (Refugee) [2024] AATA 3798 (23 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2410227

COUNTRY OF REFERENCE:                   India

MEMBER:Christine Cody

DATE:23 July 2024

PLACE OF DECISION:  Sydney

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

Statement made on 23 July 2024 at 6:27pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 494C
Migration Regulations 1994, 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 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 23 March 2024 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 1 May 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 23 March 2024 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The application for review form contains the applicant’s submissions as follows:

   The decision email from the department went to my spam folder and I normally did not check my spam folder. I used to check one in a month and I came to know the mail came on 23rd March 2024. As soon as I checked my mail, I straight away I applied for review.

5. A natural justice letter was sent to the applicant noting that his application for review did not appear to have been lodged within the relevant time limit:

   The primary decision was emailed to you on 23 March 2024 meaning that 23 March 2024 was the date on which you are taken to have been notified. In accordance with DZAFH, the last day for lodging the application for review was 19 Apr 2024. As the application was not received until 1 May 2024, it appears to be out of time.

6. In  response the applicant stated:

   I did not receive the notification on time. I have applied within 28 days from the receipt of notification regarding the refusal of visa.

7. The Tribunal has no discretion in this matter. The relevant date is that of notification, not the date that the applicant says that he received the notification of the decision.

8. The Tribunal finds that the applicant is taken to have been notified of the decision on 23 March 2024: s 494C of the Act. Therefore the prescribed period to apply for review ended on 19 April 2024.

9. As the application for review was not received by the Tribunal until 1 May 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.

    Christine Cody
    Member