2118229 (Refugee)

[2022] AATA 5255

2118229 (Refugee) [2022] AATA 5255 (10 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2118229

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:David McCulloch

DATE:10 March 2022

PLACE OF DECISION:  Sydney

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

Statement made on 10 March 2022 at 3:39pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – review application out of time – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 494C
Migration Regulations 1994, r 4.31

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

1. This is an application for review of a decision of a delegate of the Minister for Immigration and Border Protection on 17 July 2015 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 3 December 2021. 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 12 November 2020 and dispatched by post. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The Tribunal finds that the applicant is taken to have been notified of the decision on 23 November 2020: s 494C of the Act. Therefore the prescribed period to apply for review ended on 20 December 2020.

5. 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 21 December 2020: s 36(2) of the Acts Interpretation Act 1901 (Cth).

6. The Tribunal wrote to the applicant on 10 December 2021 indicating, based on the above, and given that the application for review was not lodged until 3 December 2021, the application appeared to be out of time. The applicant was given the opportunity to respond to this preliminary view of the Tribunal. No response was received.

7. As the application for review was not received by the Tribunal until 3 December 2021 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.

   David McCulloch
   Member