2311668 (Refugee)

[2023] AATA 3368

2311668 (Refugee) [2023] AATA 3368 (22 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2311668

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Peter Papadopoulos

DATE:22 September 2023

PLACE OF DECISION:  Sydney

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

Statement made on 22 September 2023 at 2:50pm

CATCHWORDS
REFUGEE – protection visa – Thailand – application for review made more than 28 days after notification of visa refusal decision – no response to invitation to comment – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 494
Migration Regulations 1994 (Cth), r 4.31(2)
Acts Interpretation Act 1901 (Cth), s 36(2)

CASE
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 8 May 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 6 August 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 8 May 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 29 August 2023, the Tribunal wrote to the applicant explaining that her review application did not appear to have been validly made as it was not lodged within the relevant timeframe. The Tribunal explained that pursuant to reg 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. The Tribunal further explained that the prescribed period in reg 4.31 commences on, and includes, the day the applicant is taken to have been notified of the decision: DZAFH v Minister for Immigration [2017] FCCA 387 at [44] – [46]. The applicant was invited to comment on this information, in writing, by 12 September 2023.

5. The Tribunal has not received a response to its letter of 29 August 2023.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 8 May 2023: s 494C of the Act. Therefore the prescribed period to apply for review ended on 4 June 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 5 June 2023: s 36(2) of the Acts Interpretation Act 1901 (Cth).

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

   DECISION

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

   Peter Papadopoulos
   Member