2316829 (Refugee)

2316829 (Refugee) [2023] AATA 4561 (28 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2316829
COUNTRY OF REFERENCE:                   Samoa
MEMBER:James Silva
DATE:28 November 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 28 November 2023 at 6:02pm
CATCHWORDS
REFUGEE – protection visa – Samoa – review application made out of time – No jurisdiction
LEGISLATION
Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth), 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 28 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 19 October 2023. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 28 June 2023 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 28 June 2023: s.494C of the Act.
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]. Therefore the prescribed period to apply for review ended on 25 July 2023.
The Tribunal wrote to the applicant on 2 November 2023, inviting comment on the validity of the application for review, as it appeared to have been made out of time. There was no acknowledgement or reply.
As the application for review was not received by the Tribunal until 19 October 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.
James Silva
Member

The Administrative Appeals Tribunal (AAT) considered an application for review concerning a protection visa for a person from Samoa. The central dispute revolved around whether the Tribunal possessed jurisdiction to hear the application, given that it was lodged outside the prescribed time limits.

The primary legal issue before the Tribunal was whether it had the jurisdiction to consider the application for review, as the application was not received by the Tribunal within the timeframe stipulated by the relevant legislation.

The Tribunal determined that the application for review was not made in accordance with the relevant legislative requirements because it was received by the Tribunal on 19 October 2023, which was after the statutory deadline. Consequently, the Tribunal concluded that it lacked jurisdiction to hear the matter. The Tribunal therefore made no order on the merits of the protection visa application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established