2209804 (Refugee) - [2022] AATA 4131

2209804 (Refugee) [2022] AATA 4131 (18 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2209804
COUNTRY OF REFERENCE:                   China
MEMBER:Mr S Norman
DATE:18 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 18 October 2022 at 12:30pm
CATCHWORDS
REFUGEE – protection visa – China – review application out of time – stating the merits review application deadline in absolute terms – no jurisdiction
LEGISLATION
Migration Act 1958, ss 65, 66, 494C
Migration Regulations 1994, r 4.31
CASES
Cao v MIAC (2009) 176 FCR 396
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 17 March 2022 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 5 July 2022. 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 the applicant was notified of the decision by letter dated 17 March 2022 and dispatched by email. The Tribunal is satisfied the applicant was notified of the decision in accordance with the statutory requirements.
By letter dated 12 July 2022 (dispatched by email), the Tribunal wrote to the applicant and advised it appeared the review application was not valid 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 an 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 17 March 2022 meaning that 17 March 2022 was the date on which she was taken to have been notified. In accordance with DZAFH, the last day for lodging the application for review was 13 April 2022. As the application was not received until 5 July 2022, it appeared to be out of time. The applicant was invited…

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 4131
Decision Date: 18 October 2022

CaseChat Overview and Summary

The applicant sought review of a decision concerning a protection visa application, with the review application being lodged with the Administrative Appeals Tribunal out of time. The dispute centred on whether the Tribunal possessed jurisdiction to hear the application given its late lodgement.

The primary legal issue before the Tribunal was whether it had jurisdiction to consider the merits review application, which was received by the Tribunal on 5 July 2022, after the statutory deadline for making such an application had passed.

The Tribunal, constituted by Mr S Norman, Member, determined that the application for review was not made in accordance with the relevant legislative provisions due to its late lodgement. Consequently, the Tribunal concluded that it lacked jurisdiction to hear the matter. The decision was that the Tribunal does not have jurisdiction in this matter.

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 5 July 2022 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.Mr S Norman Member

Ratio Decidendi

Legal Principle Established

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