1517344 (Refugee)

[2016] AATA 3240

1517344 (Refugee) [2016] AATA 3240 (28 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1517344

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Filip Gelev

DATE:28 January 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 28 January 2016 at 4:15pm

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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 13 November 2015, to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 15 December 2015. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

2. Pursuant to s.412(1)(b) of the Act and r.4.31 of the Migration Regulations 1994, an application for review of this decision had to be made within 28 days after the applicant was notified of the decision in accordance with the statutory requirements.

3. The Department of Immigration file contains a copy of the refusal notification letter, dated [November] 2015 which was sent to the applicant by email to the email address he provided to the Department of Immigration. At question 41 of Part C of the application form, the applicant consented to the Department communicating with him by email. The email address he provided was the email address used by the Department to write to him.

4. There is no evidence on the Departmental file nor in any contact that the applicant has had with the Tribunal that he did not receive the notification letter, that it was sent to the wrong email address or that he should have been notified by other means.

5. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

6. On 21 December 2015 the Tribunal wrote to the applicant inviting her to comment on the validity of the application. The letter noted that the time limit for applications is 28 days, that the applicant is taken to have been notified of the decision on the day of the email, [November] 2015, and that consequently the 28 day period expired [in] December 2015.

7. The letter advised that the applicant had until 4 January 2016 to respond.

8. The applicant responded on 8 January 2016. He advised that he was not aware of the 28 day “time frame” and sought an extension of time.

9. Unfortunately, the Tribunal does not have the power to grant an extension of time.

10. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 13 November 2015. Therefore the prescribed period within which the review application could be made ended on 11 December 2015. As the application for review was not received by the Tribunal until 15 December 2015 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

    DECISION

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

    Filip Gelev
    Member