2310533 (Refugee)

[2023] AATA 4797

2310533 (Refugee) [2023] AATA 4797 (4 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2310533

COUNTRY OF REFERENCE:                   East Timor

MEMBER:Tania Flood

DATE:4 October 2023

PLACE OF DECISION:  Sydney

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

Statement made on 04 October 2023 at 1:54pm

CATCHWORDS
REFUGEE – protection visa – East Timor – application for review made more than 28 days after notification of refusal decision – mistake conceded and no issue regarding notification requirements raised – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 4.31(2)
Acts Interpretation Act 1901 (Cth), s 36(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

1. This is an application for review of a decision of a delegate of the Minister for Home Affairs on 15 May 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 17 July 2023. 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 15 May 2023 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 26 July 2023 the Tribunal wrote to the applicant advising him that his application for review appears not to be a valid application as it was not lodged within the relevant time limit. The applicant was advised that pursuant to r.4.31(2) of the Regulations 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 applicant was advised that as the primary decision was emailed to him on 15 May 2023 the last day for lodging the application for review was 13 June 2023. The applicant was invited to make any comments on whether a valid application for review has been made in writing by 9 August 2023.

5. On 9 August 2023 the applicant emailed the Tribunal stating that he is trying to obtain assistance from Legal Aid Victoria in respect of his case.  He stated that he didn’t see the Department’s email and conceded he had made a mistake.

6. Notwithstanding the applicant’s submission the Tribunal is satisfied that the notification of the Department’s decision which was sent to him on 15 May 2023 was emailed to the correct address held on file at that date.  The Tribunal considers the applicant’s comments do not raise any issues regarding any breaches of notification requirements.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 15 May 2023: s 494C of the Act. Therefore the prescribed period to apply for review ended on 11 June 2023.

8. 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 application, i.e. until 13 June 2023: s 36(2) of the Acts Interpretation Act 1901 (Cth).

9. As the application for review was not received by the Tribunal until 17 July 2023 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

    Tania Flood
    Member