2217718 (Refugee)

[2023] AATA 1552

2217718 (Refugee) [2023] AATA 1552 (6 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2217718

COUNTRY OF REFERENCE:                   Laos, Peoples Democratic Rep

MEMBER:Nicole Burns

DATE:6 March 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 06 March 2023 at 12:06pm

CATCHWORDS
REFUGEE – protection visa – Laos – review application made out of time – no jurisdiction

LEGISLATION
Acts Interpretation Act 1901 (Cth), s 36
Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth), 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 Home Affairs on 18 July 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 2 December 2022. 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 18 July 2022 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 19 December 2022 the Tribunal wrote to the applicant seeking her comments on its preliminary view that the review application was invalid, as it was lodged outside the statutory time limits.  No response was received. 

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 18 July 2022: s 494C of the Act. Therefore the prescribed period to apply for review ended on 14 August 2022.

6. 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 15 August 2022: s 36(2) of the Acts Interpretation Act 1901 (Cth).

7. As the application for review was not received by the Tribunal until 2 December 2022 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.

   Nicole Burns
   Member