2425630 (Refugee)

[2024] AATA 4233

2425630 (Refugee) [2024] AATA 4233 (30 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2425630

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Suhad Dutra

DATE:30 September 2024

PLACE OF DECISION:  Sydney

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

Statement made on 30 September 2024 at 3:06pm

CATCHWORDS

REFUGEE – protection visa – Fiji – 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

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 23 June 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 29 July 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 23 June 2024, dispatched by email to the email address provided by the applicant for electronic communications. 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 23 June 2024: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 20 July 2024.

5. As the last day of the prescribed period fell on a Saturday, the applicant had until the end of the next day that was not a Saturday, a Sunday or a holiday to lodge her review application, i.e. until 22 July 2024: s 36(2) of the Acts Interpretation Act 1901 (Cth).

6. By letter dated 30 August 2024, sent to the applicant by email, the Tribunal invited submissions regarding the validity of the review application. By reply email dated 4 September 2024, the applicant responded that she did not submit her review application until 29 July 2024 because the Department’s email enclosing the notification and the Delegate’s Decision went to her spam inbox, which she did not check regularly; she lodged the review application promptly upon discovering that email. She also submitted information about her current employment in Australia which, she stated, is critical for her stability and livelihood. Given the importance of her employment and personal circumstances, and her commitment to complying with Australian laws, she requested that her review application be considered for compassionate and compelling reasons. Her email attached a letter confirming her employment in Australia. She did not dispute the late lodgement of her review application.

7. As the application for review was not received by the Tribunal until 29 July 2024 and the Tribunal has no power to extend time, I find that 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.

   Suhad Dutra
   Member