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

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.
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).
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.
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.
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’.
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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] AATA 854
Decision Date: 13 February 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for review of a decision to refuse a protection visa. The applicant sought review of the refusal decision, but the application was lodged with the Tribunal after the statutory time limit had expired. The applicant had also subsequently applied for another visa, which was also refused.

The primary legal issue before the Tribunal was whether it had jurisdiction to consider the application for review, given that it was lodged out of time. The Tribunal was required to determine if there was any discretion to extend the time limit for lodging an application for review in these circumstances.

The Tribunal found that the application for review was not received until 2 February 2024, which was more than 28 days after the notification of the visa refusal decision. The Tribunal held that the relevant legislation did not grant it a discretion to extend this time limit. Consequently, the Tribunal concluded that it lacked jurisdiction to hear the application for review.

The Tribunal made no orders as to costs and determined that it did not have jurisdiction in this matter.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 The Tribunal does not have jurisdiction in this matter.Jane MarquardMember

Ratio Decidendi

Legal Principle Established

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