2316652 (Refugee)

[2023] AATA 4690

2316652 (Refugee) [2023] AATA 4690 (5 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2316652

COUNTRY OF REFERENCE:                   Fiji

MEMBER:De-Anne Kelly

DATE:5 December 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 05 December 2023 at 10:35am

CATCHWORDS
REFUGEE – protection visa – Fiji – 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 11 September 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 October 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 11 September 2023 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The Tribunal finds that the applicant is taken to have been notified of the decision on 11 September 2023: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 8 October 2023.

5. The last day of the prescribed period was a Sunday. 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 9 October 2023: s 36(2) of the Acts Interpretation Act 1901 (Cth).

6. On 20 October 2023 the Tribunal wrote to the applicant at the email address provided on the review application advising that the since the application was not lodged within the prescribed period of time the application may not be a valid application and inviting comment by 3 November 2023. The Tribunal stated,

   The primary decision was emailed to you on 11 September 2023 meaning that 11 September 2023 was the date on which you are taken to have been notified. In accordance with DZAFH the last day for lodging the application for review was Sunday 8 October 2023. As the last day for lodging the application fell on a Sunday, you had until the next working day to lodge the review application, which was 9 October 2023. As the application was not received until 17 October 2023, it appears to be out of time.

7. There was no response to the invitation to comment.

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

   DECISION

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

   De-Anne Kelly
   Member