2300452 (Refugee)

2300452 (Refugee) [2023] AATA 1730 (3 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Luke Daniel Brennan
CASE NUMBER:  2300452
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Kate Chapple
DATE:3 April 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 03 April 2023 at 7:20am
CATCHWORDS
REFUGEE – protection visa – Pakistan – 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
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 12 December 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 13 January 2023. 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 12 December 2022 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
The Tribunal finds that the applicant is taken to have been notified of the decision on 12 December 2022: s 494C of the Act. Therefore the prescribed period to apply for review ended on 8 January 2023.
As the last day of the prescribed period fell on a Sunday, 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 9 January 2023: s 36(2) of the Acts Interpretation Act 1901 (Cth).
As the application for review was not received by the Tribunal until 13 January 2023 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.
Kate Chapple
Member

The applicant sought review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs concerning a protection visa application. The Administrative Appeals Tribunal (AAT) was asked to consider the applicant's review application.

The primary legal issue before the Tribunal was whether it had jurisdiction to hear the applicant's review application, given that it was lodged outside the prescribed time limit.

The Tribunal, constituted by Member Kate Chapple, determined that the application for review was not received by the Tribunal until 13 January 2023. As this date fell outside the statutory timeframe for lodging such applications, the Tribunal concluded that the application was not made in accordance with the relevant legislation. Consequently, the Tribunal found it lacked jurisdiction to consider the matter.

The Tribunal therefore made no order other than to state that it did not have jurisdiction in this matter.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established