2211880 (Refugee)

2211880 (Refugee) [2022] AATA 4576 (5 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2211880
COUNTRY OF REFERENCE:                   Solomon Islands
MEMBER:Russell Matheson
DATE:5 December 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 05 December 2022 at 8:41pm
CATCHWORDS
REFUGEE – protection visa – Solomon Islands – 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 3 May 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 16 August 2022. 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 3 May 2022 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
On 1 September 2022, the applicant was invited to comment on the validity of the application and to do so, in writing, by 15 September 2022. To date, no response has been received.
The Tribunal finds that the applicant is taken to have been notified of the decision on 3 May 2022 in accordance with s 494C of the Act. Therefore, the prescribed period to apply for review ended on 30 May 2022.
As the application for review was not received by the Tribunal until 16 August 2022 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.
Russell Matheson
Member

The applicant sought review of a decision concerning a protection visa, with the matter coming before the Administrative Appeals Tribunal. The core of the dispute revolved around the timeliness of the applicant's review application.

The primary legal issue before the Tribunal was whether it possessed jurisdiction to hear the application for review, given that the application was lodged after the prescribed statutory timeframe.

The Tribunal determined that the application for review was not received until 16 August 2022. As this date fell outside the period stipulated by the relevant legislation for lodging such an application, the Tribunal concluded that it had no jurisdiction to consider the matter. The Tribunal's decision was made by Member Russell Matheson.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established