2401661 (Refugee)

[2024] AATA 854

2401661 (Refugee) [2024] AATA 854 (13 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2401661

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Jane Marquard

DATE:13 February 2024

PLACE OF DECISION:  Sydney

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

Statement made on 13 March 2024 at 2:44pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – application for review made more than 28 days after notification of visa refusal decision – after refusal, applied for another visa, which was also refused – no discretion to extend time limit – no jurisdiction

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

CASES
Beni v MIBP [2018] FCAFC 228
BET16 v MIBP [2016] FCCA 3165
SZRHA v MAIC (FMCA, Cameron FM, 14 February 2013); [2013] FCA 531

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 28 April 2021 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 2 February 2024. 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 28 April 2021 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. The last date for lodgement of the application for review, in accordance with legislative requirements, was 25 May 2021.

4. The Tribunal wrote to the applicant on 2 February 2024 to notify her that her application for review appeared to be out of the prescribed time period, as she lodged the application on 2 February 2024. She was invited to comment or respond.

5. On 22 February 2024 the applicant made submissions to the Tribunal. She said that ‘after the refusal I applied for an alternative visa and I found out that the minister of home affairs had not given me a chance to get the interview and refused my visa. Therefore I decided to appeal to the Tribunal again’.

6. The Tribunal has considered the submissions of the applicant and acknowledges that she had decided to apply for a different visa and later decided to appeal to the Tribunal. The Tribunal does not have a discretion to extend time limits. In SZRHA v MAIC,[1] while the Court accepted the applicant’s application was not lodged in time because of negligence on the part of her migration agent, it held the terms of the Migration Act are strict and clear and neither the Tribunal nor the Court have power to allow extra time for the lodgement of a review application. Similarly, in BET16 v MIBP,[2] the Court considered the situation of an applicant in immigration detention whose review application was not lodged in time due to unsuccessful attempts by a Serco officer to fax the review application to the Tribunal. The applicant stated that he was reliant upon Serco officers for administrative procedures, such as lodging the review application. The Court found that the applicant was left in the same position as an applicant whose migration agent fails to lodge an application within the required time, and held that the application was out of time, and even if that is harsh and significant injustice arises, the statutory provision allows no interference. The Full Federal Court in Beni v MIBP expressly considered the provisions of the Administrative Appeals Act 1975 (Cth) which permit the other divisions of the Tribunal to extend time limits and held that they do not extend to migration decisions and confirmed that the Tribunal does not have the power to extend time limits in these situations.[3] 

   [1] [2013] FMCA (Cameron FM, 14 February 2013). Upheld on appeal: SZRHA v MIAC [2013] FCA 531 (Nicholas J, 16 May 2013).

   [2] [2016] FCCA 3165 (Judge Smith, 14 December 2016) at [20].

   [3] Beni v MIBP [2018] FCAFC 228 (McKerracher, Reeves and Thawley JJ,14 December 2018) at [64]-[66] and [83].

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 28 April 2021: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 25 May 2021.

8. As the application for review was not received by the Tribunal until 2 February 2024 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.

   Jane Marquard
   Member