2115549 (Refugee) - [2022] AATA 834

2115549 (Refugee) [2022] AATA 834 (1 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2115549
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:De-Anne Kelly
DATE:1 March 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 01 March 2022 at 3:57am
CATCHWORDS
REFUGEE – protection visa – Malaysia – application made more than 28 days after notification of delegate’s decision – claim that agent responsible for late application – no jurisdiction
LEGISLATION
Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth), r 4.31(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

This is an application for review of a decision of a delegate of the Minister for Home Affairs on 6 August 2020 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 1 November 2021. 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 6 August 2020 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
The Tribunal wrote to the applicant by email on 4 November 2021 and stated that It appeared their application was not a valid application as it was not lodged within the relevant time limit. Pursuant to r.4.31(2) of the Migration Regulations 1994, 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 primary decision was emailed to the applicant on 6 August 2020 meaning that 6 August 2020 was the date on which they are taken to have been notified. In accordance with DZAFH, the last day for lodging the application for review was 2 September 2020. The Tribunal invited he applicant to comment in this information by 18 November 2021.
On 25 November 2021 the applicant responded advising that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] AATA 834
Decision Date: 1 March 2022

CaseChat Overview and Summary

The applicant sought review of a decision concerning a protection visa. The dispute arose because the application for review was lodged with the Tribunal more than 28 days after the applicant was notified of the delegate's decision. The applicant contended that their agent was responsible for the late lodgement.

The primary legal issue before the Tribunal was whether it possessed jurisdiction to hear the application for review, given that it was filed outside the statutory time limit prescribed 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 on 1 November 2021, which was beyond the 28-day period following notification of the delegate's decision. Consequently, the Tribunal concluded that it lacked jurisdiction to consider the matter. The Tribunal made no orders as it found it had no jurisdiction.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As the application for review was not received by the Tribunal until 1 November 2021 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.De-Anne KellyMember

Ratio Decidendi

Legal Principle Established

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