2219218 (Refugee) - [2023] AATA 1704

2219218 (Refugee) [2023] AATA 1704 (28 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2219218
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Gabrielle Cullen
DATE:28 March 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 28 March 2023 at 12:50pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – review application out of time – no jurisdiction
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 4.31
CASES
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 18 November 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 29 December 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 that the applicant was notified of the decision by letter dated 18 November 2022 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 a natural justice letter to the applicant on 9 January 2023, conveying its preliminary view that the application for review appeared to be invalid because it was not lodged within the relevant time limit. The Tribunal indicated that the primary decision was emailed to the applicant on 18 November 2022 and in accordance with DZAFH v Minister for Immigration (2017) FCCA 387 the last day for lodging the review was 15 December 2022. The letter noted the application for review was not received until 29 December 2022 and it appeared to be out of time.
The Tribunal invited the applicant to submit any comments by 23 January 2023 and on 10 January 2023 he provided the following response
It appears that my application is not a valid application as it was not lodged within the relevant time limit. The reason it was happened because I got problem to open my email as I lost my phone and once I bought a new phone I was forgot my password for my email. Once I figured it out my password for that email, it's already been late for me to lodge my application for review with the Tribunal.
The Tribunal finds that the…

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.

Keep reading for free

Create a free CaseChat account to read 2219218 (Refugee) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] AATA 1704
Decision Date: 28 March 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for review of a decision concerning a protection visa. The applicant sought to have the AAT review a decision made by the Minister.

The primary legal issue before the Tribunal was whether it had jurisdiction to hear the applicant's review application, given that it was lodged outside the prescribed time limit. The Tribunal was required to determine the date on which the applicant was taken to have been notified of the original decision and, consequently, the date by which the review application should have been filed.

The Tribunal found that the applicant was taken to have been notified of the decision on 18 November 2022, meaning the prescribed period for lodging an application for review expired on 15 December 2022. Despite considering the applicant's response, the Tribunal noted that the application for review was not received until 29 December 2022. As the application was not made within the statutory timeframe, the Tribunal concluded that it lacked jurisdiction to consider the matter.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Tribunal finds that the applicant is taken to have been notified of the decision on 18 November 2022. Therefore, the prescribed period to apply for review ended on 15 December 2022. The Tribunal has considered the applicant’s repone, however, as the application for review was not received by the Tribunal until 29 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 The Tribunal does not have jurisdiction in this matter.Gabrielle CullenMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.