1721249 (Refugee)

[2017] AATA 1829

1721249 (Refugee) [2017] AATA 1829 (10 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1721249

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Rosa Gagliardi

DATE:10 October 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 10 October 2017 at 12:32pm

CATCHWORDS
Refugee – Protection visa – Malaysia – No jurisdiction – Application for review made out of time – No response to invitation to provide comments

LEGISLATION
Migration Act 1958 – ss.65, 494C
Migration Regulations 1994, Schedule 2 – rr. 4.3, 4.31(2)

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 dependant.

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 Immigration [in] August 2017 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 September 2017. 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: r.4.31(2) of the Migration Regulations 1994.

3. On 13 September 2017 the Tribunal wrote to the applicant by way of a natural justice letter, providing a preliminary view that the application had not been lodged within the relevant time limit.  The letter explained that in DZAFH v Minister for Immigration [2017] FCCA 387, the Federal Circuit Court held that the prescribed period in r.4.3 commences on, and includes, the day the applicant is taken to have been notified of the decision: at [44]-[46].

4. The applicant was provided until 27 September 2017 to make any comments as to why he considered a valid application had been made.  As at the time of writing the applicant has not responded to the Tribunal’s invitation of 13 September 2017.

5. As it is, the material before the Tribunal indicates that the applicant was notified of the decision by letter dated [a date in] August 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on

   
   

   [that date in] August 2017: s.494C of the Act. Therefore the prescribed period to apply for review ended on [a date in] September 2017. As the application for review was not received by the Tribunal until 11 September 2017 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Rosa Gagliardi
   Member