2414055 (Refugee)

[2024] AATA 3800

2414055 (Refugee) [2024] AATA 3800 (23 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2414055

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Nora Lamont

DATE:23 September 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 23 September 2024 at 1:19pm

CATCHWORDS

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

LEGISLATION

Acts Interpretation Act 1901, s 36
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 25 February 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 28 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 25 February 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 applicant submitted the following letter in relation to the invitation to comment:

   I am writing this letter to respond to yours dated 23 August 2024 regarding your invitation to comment on the validity of my Application for Review. I was helped by a friend who lodged my application for a protection visa on 4 January 2021 and used his email address for all correspondence on my behalf. The application was refused on 25 February 2024 and information was sent to his email but he did not let me know nor can I contact him. When my employer notified me that my visa expired I asked for help from [Mr A] who contacted the Department for Home Affairs and requested the Notification of Refusal of my Visa Application and Decision records. The documents were received by [Mr A] on 28 May 2024. (please see a copy of the email from the DHA attached). Therefore, I applied for review with the Administrative Appeals Tribunal once I received the needed documents. I also enclose all emails and evidence between [Mr A] and the Immigration Division to request and acquire the Refusal Letter as well as the decision records. I hope that you will consider my circumstances on compelling grounds and accept my application for review.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 25 February 2024: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 23 March 2024.

6. As the last day of the prescribed period fell on a Saturday, the applicant had until the end of the next day that was not a Saturday, a Sunday or a holiday to lodge his or her application, i.e. until 25 March 2024: s 36(2) of the Acts Interpretation Act 1901 (Cth).

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

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

   Nora Lamont
   Member