2302396 (Refugee) - [2023] AATA 2371

2302396 (Refugee) [2023] AATA 2371 (1 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2302396
COUNTRY OF REFERENCE:                   Tonga
MEMBER:Peter Papadopoulos
DATE:1 May 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 01 May 2023 at 4:54pm
CATCHWORDS
REFUGEE – protection visa – Tonga – application made more than 28 days after notification of refusal decision – illness and forgetting to apply – member of particular social group – homosexual man – no jurisdiction
LEGISLATION
Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth), r 4.31(2)
CASE
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 23 January 2023 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 22 February 2023. 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 23 January 2023 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
On 15 March 2023, the Tribunal wrote to the applicant explaining that appears that his application was not a valid application 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 the 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 23 January 2023 meaning that 23 January 2023 was the date on which he is taken to have been notified. In accordance with DZAFH, the last day for lodging the application for review was 20 February 2023. As the application was not received until 22 February 2023, it appears to be out of time.
The applicant…

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: [2023] AATA 2371
Decision Date: 1 May 2023

CaseChat Overview and Summary

The applicant, a citizen of Tonga, sought review of a decision to refuse a protection visa. The application for review was lodged with the Tribunal more than 28 days after the applicant was notified of the refusal decision. The applicant contended that their delay in lodging the application was due to illness and forgetfulness, and that they were a member of a particular social group, specifically a homosexual man, who would face harm if returned to Tonga.

The primary legal issue before the Tribunal was whether it had jurisdiction to consider the application for review, given that it was lodged outside the prescribed time limit. The Tribunal was required to determine if the circumstances of the applicant's illness and forgetfulness constituted a sufficient basis to extend the time for lodging the application, or otherwise confer jurisdiction.

The Tribunal found that the application for review was not made in accordance with the relevant legislative provisions due to the late lodgement. Despite having considerable sympathy for the applicant's circumstances, the Tribunal concluded that it lacked jurisdiction to hear the matter. The Tribunal did not make any findings on the merits of the applicant's claim for protection or their membership in a particular social group.

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

While the Tribunal has considerable sympathy for the applicant, as the application for review was not received by the Tribunal until 22 February 2023, 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.Peter PapadopoulosMember

Ratio Decidendi

Legal Principle Established

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