2310597 (Refugee)

[2023] AATA 4379

2310597 (Refugee) [2023] AATA 4379 (6 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2310597

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Tania Flood

DATE:6 October 2023

PLACE OF DECISION:  Sydney

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

Statement made on 06 October 2023 at 1:41pm

CATCHWORDS

REFUGEE – protection visa – Fiji – 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

1. This is an application for review of a decision of a delegate of the Minister for Home Affairs on 10 June 2023 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 18 July 2023. 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 10 June 2023 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 13 September 2023 the Tribunal wrote to the applicant advising him that his application for review appears not to be a valid application as it was not lodged within the relevant time limit. The applicant was advised that pursuant to r.4.31(2) of the Regulations the period in which an application for review of a Part 7 – reviewable decision must be given to the Tribunal is 28 days, commencing on the day the applicant is notified of the decision. 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 applicant was advised that as the primary decision was emailed to him on 10 June 2023 the last day for lodging the application for review was 7 July 2023. The applicant was invited to make any comments on whether a valid application for review has been made in writing by 27 September 2023. The applicant did not respond to the Tribunal’s letter.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 10 June 2023: s 494C of the Act. Therefore the prescribed period to apply for review ended on 7 July 2023.

6. As the application for review was not received by the Tribunal until 18 July 2023 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

7. The Tribunal does not have jurisdiction in this matter.

   Tania Flood
   Member