2317299 (Refugee)

[2024] AATA 936

2317299 (Refugee) [2024] AATA 936 (19 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2317299

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Wendy Banfield

DATE:19 January 2024

PLACE OF DECISION:  Canberra

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

Statement made on 19 January 2024 at 12:57pm

CATCHWORDS
REFUGEE – Protection Visa – Fiji – applicant was notified of the decision in accordance with the statutory requirements– application lodged out of time – no jurisdiction

LEGISLATION
Migration Act 1958, ss 65, 494C
Migration Regulations 1994, 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 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 13 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 26 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 13 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 13 September 2023: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 10 October 2023.

5. The Tribunal wrote to the applicant on 5 December 2023 inviting her to comment on the validity of the application for review. The applicant replied to the invitation on 10 and 18 December 2023. In the response the applicant stated she had paid someone to submit her application for review but on checking with them, she realised it had not been done. The applicant asked that her late submission be considered. The applicant did not deny the application for review was out of time, as it was not submitted until 26 October 2023.

6. The Tribunal considered the response but does not have a discretion to accept a late application for review of a decision of a delegate of the Minister for Home Affairs to refuse to grant a protection visa. As the application for review was not received by the Tribunal until 26 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

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

   Wendy Banfield
   Member