2213295 (Refugee)

[2023] AATA 462

2213295 (Refugee) [2023] AATA 462 (24 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2213295

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Wan Shum

DATE:24 January 2023

PLACE OF DECISION:  Sydney

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

Statement made on 24 January 2023 at 5:00pm

CATCHWORDS
REFUGEE – protection visa – Thailand – application for review made more than 28 days after of visa refusal notification – no response to tribunal’s invitation to comment – no jurisdiction

LEGISLATION
Migration 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 4.31(2)

CASE
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 14 April 2022 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 9 September 2022. 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 14 April 2022 and dispatched by email to the email address that the applicant provided to the Minister for the purpose of receiving documents. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. This means that 14 April 2022 was the date on which the applicant was taken to have been notified and the last day for lodging the application for review was 13 July 2022 (refer DZAFH v Minister for Immigration [2017] FCCA 387 at [44] – [46], where 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). As the application was not received until 9 September 2022, it appeared to be out of time.

5. An officer of the Tribunal wrote to the applicant inviting him to comment on the view that his application is not a valid application as it was not lodged within the relevant time limit. No response addressing this matter has been received.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 14 April 2022. Therefore, the prescribed period to apply for review ended on 11 May 2022.

7. As the application for review was not received by the Tribunal until 9 September 2022 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.

   Wan Shum
   Member