2402676 (Refugee)

[2024] AATA 1762

2402676 (Refugee) [2024] AATA 1762 (30 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2402676

COUNTRY OF REFERENCE:                   Vanuatu

MEMBER:Linda Holub

DATE:30 April 2024

PLACE OF DECISION:  Sydney

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

Statement made on 30 April 2024 at 4:47pm

CATCHWORDS

REFUGEE – protection visa – Vanuatu – review application out of time – no jurisdiction

LEGISLATION

Acts Interpretation Act 1901, s 36
Migration Act 1958, ss 65, 494C
Migration Regulations 1994, r 4.31

CASES

DZAFH v Minister for Immigration [2017] FCCA 387

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 15 January 2024 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 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 15 January 2024 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 wrote to the applicant indicating that it appeared the application is not a valid application as it was not lodged within the relevant time limit. The letter explained that the time limit is 28 days from the day on which the visa applicant is taken to have been notified of the primary decision. The letter outlined that as the primary decision was emailed to her on 15 January 2024, therefore 15 January 2024 is the date on which the applicant is taken to have been notified. On that basis, and in accordance with DZAFH v Minister for Immigration [2017] FCCA 387 the last day for lodging the application for review was 11 February 2024. As the review application was not received until 17 February 2024 it appears to be out of time. The applicant was provided until 13 March 2024 to make any comments. No response was received from the applicant.

5. The letter also acknowledge that she had lodged an application on 12 February 2024 in relation to case number 2402240 and that the application is a valid application.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 15 January 2024: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 11 February 2024.

7. 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 her application, i.e., until 12 February 2024: s 36(2) of the Acts Interpretation Act 1901 (Cth).

8. As the application for review was not received by the Tribunal until 17 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.

   Linda Holub
   Member