2112344 (Refugee)

2112344 (Refugee) [2022] AATA 973 (21 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2112344
COUNTRY OF REFERENCE:                   India
MEMBER:Peter Vlahos
DATE:21 March 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal does not have jurisdiction in this matter.
This Statement was made on 21^st March 2022 at 12.31PM.

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
CASES
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

This is an application for review of a decision of a delegate of the Minister for Home Affairs on 1 June 2021 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 14 September 2021. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
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).
The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 1 June 2021 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The primary decision was emailed to the applicants on 1 June 2021 meaning that 2021 was the date on which the applicants were taken to have been notified. In accordance with Federal Circuit Court ruling in DZAFH, the last day for lodging the application for review was 28 June 2021. As the application was not received until 14 September 2021, it appears to be out of time.

The applicant(s) were provided with time until 14 October 2021 to make comment on the application’s validity.
As at the time of writing this decision, the applicant had provided no comment on the application’s validity.
The Tribunal finds that the applicant is taken to have been notified of the decision on 1 June 2021: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 28 June 2021.
As the application for review was not received by the Tribunal until 14 September 2021 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
DECISION
The Tribunal does not have jurisdiction in this matter.
Peter Vlahos
Member

The applicant, an individual from India, sought review of a decision concerning a protection visa. The Administrative Appeals Tribunal (AAT) was asked to consider the applicant's review application.

The central legal issue before the Tribunal was whether it had jurisdiction to hear the applicant's review application, given that it was lodged out of time.

The Tribunal determined that the application for review was not received until 14 September 2021. As this date fell outside the period prescribed by the relevant legislation for lodging such an application, the Tribunal concluded that it lacked jurisdiction to consider the matter. The Tribunal's decision was based on the statutory requirement for applications to be made within the stipulated timeframe.

Consequently, the Tribunal made no substantive determination on the merits of the protection visa application, as it was precluded from doing so by the jurisdictional defect.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established