2115524 (Refugee)

2115524 (Refugee) [2022] AATA 843 (16 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2115524
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Brendan Darcy
DATE:16 February 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 16 February 2022 at 2:26pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – applicant was notified of the decision in accordance with the statutory requirements – 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 dependant.
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 29 September 2021 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 30 October 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). In DZAFH v Minister for Immigration [2017] FCCA 387, 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: at [44] – [46].
The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 29 September 2021 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
On 4 November 2021, the Tribunal emailed the applicant to invite comment on the validity for the application for review, and to do so by 18 November 2021. The Tribunal did not receive any comment or submissions at all, either from the applicant or on the applicant’s behalf, right up to the time of making this decision.
The Tribunal finds that the applicant is taken to have been notified of the decision on 29 September 2021: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 26 October 2021.
As the application for review was not received by the Tribunal until 30 October 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.
Brendan Darcy
Member

The applicant sought review of a decision concerning a protection visa. The dispute centred on whether the Administrative Appeals Tribunal (AAT) had jurisdiction to hear the application for review, given the timing of its lodgement. The decision was made by Member Brendan Darcy of the AAT.

The primary legal issue before the Tribunal was whether the application for review had been made in accordance with the relevant legislative requirements. Specifically, the Tribunal had to determine if the lodgement date of the application for review conferred jurisdiction.

Member Darcy reasoned that the application for review was received by the Tribunal on 30 October 2021. As this date was outside the timeframe stipulated by the relevant legislation for making an application for review, the Tribunal concluded that it lacked jurisdiction to consider the matter. The Tribunal therefore held that the application was not made in accordance with the relevant legislation.

Consequently, the Tribunal made no substantive decision on the merits of the protection visa application, as it found it had no jurisdiction to do so.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established