1604919 (Refugee)

[2016] AATA 3808

1604919 (Refugee) [2016] AATA 3808 (6 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1604919

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Stuart Webb

DATE:6 May 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 06 May 2016 at 12:15pm

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 [February] 2016, 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 11 April 2016. 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 material before the Tribunal indicates that the applicant was notified of the decision by letter dated [February] 2016 and dispatched by post. The letter was sent to the address as provided by the applicant to the Department. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The Tribunal identified two issues with the application by the applicant. The Tribunal wrote to the applicant with the following letter.

   The Tribunal notes that you have used the form used for seeking a review of a decision to refuse a protection visa. You have stated in the application that you are seeking the review of a decision to cancel a visa, dated [March] 2016. You state that you received a letter from the department [in] February 2016. You state that the Department’s file number is [deleted]. The Tribunal notes that this is the file number associated with your protection visa application.

   Provided by you with the application to the Tribunal was a letter from the Department of Immigration dated [February] 2016, notifying you of the granting you a Bridging Visa C, with a visa cease date [in] March 2016.

   The Tribunal wishes to clarify with you whether you are seeking a review of the decision to refuse you a protection visa, or whether you are seeking to review a decision regarding your Bridging Visa.

   With respect to the review of the decision to refuse you a protection visa, the following information is relevant.

   I am of the view that your application is not a valid application as it was not lodged within the relevant time limit.  The time limit is 28 days from the day on which you are taken to have been notified of the primary decision.  As the primary decision was notified by letter dated [in] February 2016 by post, you are taken to have received the decision notification on [date] February 2016.

   If you are taken to have received the decision on [date] February 2016, the last day for lodging the application for review was [date] March 2016.  The application was not received by us until 11 April 2016.

   We provide a complimentary copy of the Decision to refuse your protection visa application and the accompanying notification letter sent to you dated [in] February 2016.

   With respect to your Bridging Visa, I am of the view that your application is not a valid application as there is no primary decision regarding your visa. From the information provided by you to the Tribunal the Bridging Visa granted to you [in] February 2016 ceased on [in] March 2016. The ceasing of a Bridging Visa at the stated expiry date of the visa is not a decision to cancel a visa.  As your visa has ceased, no decision to cancel your visa has been made.

   The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to refuse or cancel visas but not where a decision regarding a visa has not been made.

5. The applicant provided the following letter to the Tribunal.

   Hello. I’m very sorry. Because I received the date of the post and telecommunications is [date] February 2016. In the letter of visa grant date is [date] February 2016 visa cease date is [date] March 2016. Only 18 days so I think that from [date] March 2016 after the appeal within 28 days. Please give me a chance. Thanks.

6. Noting that the response did not address both issues as identified by the Tribunal, the Tribunal contacted the applicant and spoke to him with an interpreter. The Tribunal advised the applicant to carefully read the letter sent to him by email, and respond to that letter. The applicant did not provide any further submissions.

7. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on [date] February 2016. Therefore the prescribed period within which the review application could be made ended on [date] March 2016. As the application for review was not received by the Tribunal until 11 April 2016 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

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

   Stuart Webb
   Member