2214386 (Refugee)

[2023] AATA 639

2214386 (Refugee) [2023] AATA 639 (8 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2214386

COUNTRY OF REFERENCE:                   Laos, Peoples Democratic Rep

MEMBER:Justine Clarke

DATE:8 February 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 08 February 2023 at 6:11pm

CATCHWORDS
REFUGEE – protection visa – Laos – application for review made more than 28 days after notification of visa refusal decision – applicants’ lack of knowledge of English – strict requirement and no power to allow extra time – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 36(2), 65, 494C
Migration Regulations 1994 (Cth), r 4.31(2)

CASE
SZRHA v Minister for Immigration [2013] FMCA 131

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. On 28 September 2022, the first-named applicant lodged with the Tribunal an application for review of two decisions made by delegates of the Minister for Home Affairs on 15 August 2022 to refuse to grant, respectively, the first and second-named applicant protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decisions.

3. As the applicants were not in immigration detention on the day the applicants were notified of the decisions, an application for review of each decision had to be made within 28 days, commencing on that day: reg 4.31(2) of the Migration Regulations 1994 (Cth) (the Regulations).

4. The material before the Tribunal indicates that each applicant was notified of their respective decision by letter dated 15 August 2022 and dispatched by email. The Tribunal is satisfied that each applicant was notified of their respective decision in accordance with the statutory requirements.

5. On 18 October 2022, the Tribunal sent a letter to the applicants, by way of email, inviting them to comment on the validity of the review. The letter requested any comments to be provided in writing by 1 November 2022.

6. On 26 October 2022, the first-named applicant submitted her written comments. She relevantly stated:

   The reasons why I late applied, because I and my husband Laotian, we noneducational, no knowledge of English only know a letters a–z is always effected to our life, which uneducated, when immigration sent us the notification Notification of refusal of application for a Protection (subclass 866) visa I do not know what is that, until I asking some friend to help.

7. The Tribunal has considered the submission.

8. The Tribunal finds that each applicant is taken to have been notified of their respective decision on 15 August 2022: s 494C of the Act. Therefore, the prescribed period to apply for review of each decision ended on 11 September 2022.

9. As the last day of the prescribed period fell on a Sunday, each 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 12 September 2022: s 36(2) of the Acts Interpretation Act 1901 (Cth).

10. Once an applicant has been validly notified of the primary decision, the application for review must be lodged with the Tribunal within the relevant prescribed period. If an application is received outside the time period, the Tribunal has no jurisdiction. In SZRHA v Minister for Immigration [2013] FMCA 131, Cameron FM stated, at [25], that ‘[t]he terms of the Act are strict and clear and neither the Tribunal nor the Court have power to allow extra time for the lodgement of a review application to the Tribunal. This is so regardless of whether it results in ‘a harsh outcome’.

11. As the application for review was not received by the Tribunal until 28 September 2022, the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

    DECISION

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

    Justine Clarke
    Member