2318190 (Refugee)

[2024] AATA 834

2318190 (Refugee) [2024] AATA 834 (17 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2318190

COUNTRY OF REFERENCE:                   Samoa

MEMBER:Alison Mercer

DATE:17 January 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 17 January 2024 at 4:16pm

CATCHWORDS
REFUGEE – protection visa – Samoa – application for review made more than 28 days after notification of visa refusal decision – two days late – miscalculated date because process overwhelming and depressing – no discretion to waive or extend prescribed period or for compassionate or compelling circumstances – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth), r 4.31(2)

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 12 October 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 10 November 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 12 October 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 28 November 2023, the Tribunal wrote to the applicant to advise that it appeared that her review application was not valid as it had been lodged outside the prescribed time frame, being 28 days from the date she was notified of the visa refusal decision (12 October 2023), being 8 November 2023. The Tribunal noted that the applicant’s review application was not received until 10 November 2023. It invited the applicant to comment on or respond to this issue by 12 December 2023, after which any response received would be referred to a Tribunal Member, who would determine whether the review application had been validly made.

5. On 11 December 2023, the Tribunal received a response from the applicant advising that she had miscalculated the last date for lodgement of the review application. She asked that the Tribunal nevertheless consider her review application as valid as it was only a couple of days outside the prescribed timeframe, and she could not afford a lawyer to assist her to make the review application. She stated that the fact that she was applying for a protection visa in a foreign country was overwhelming and depressing.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 12 October 2023: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 8 November 2023. The Tribunal notes the issues raised by the applicant but neither the Migration Act nor Regulations (nor any other legislation) confer a power on the Tribunal to waive or extend the prescribed period for lodgement of a review application, even where the application is lodged only shortly after the expiry date of the prescribed period and/or there may be compassionate and/or compelling circumstances in the case.

7. As the application for review was not received by the Tribunal until 10 November 2023 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Alison Mercer

   Member