1721288 (Refugee)

[2017] AATA 1970

1721288 (Refugee) [2017] AATA 1970 (9 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1721288

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Luke Hardy

DATE:9 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 09 October 2017 at 10:52am

CATCHWORDS

Refugee – Protection Visa – Malaysia – Application lodged late – Applicant taken to be notified – Out of time

LEGISLATION

Migration Act 1958, s 65, 494C

Migration Regulations 1994, r 4.31

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 on [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. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated [in] August 2017 and dispatched by email. The prescribed period to apply for review ended [in] September 2017.

4. The Tribunal wrote to the applicant on 27 September 2017 to invite her to comment on whether a valid review application had been made, and to do so by 11 October 2017. The applicant responded by email on 5 October 2017, advising the Tribunal that when she received her protection visa refusal from the Immigration Department she asked a friend to help her understand what she needed to do in order to seek merits review, due to her own lack of English. She said that she handed material to her friend, a [Mr A], who told her that all she need to do was to await further information. She suggested vaguely that [Mr A] sent her review application to the Tribunal; she did not suggest that [Mr A] lodged it within the statutory timeframe. In saying that she did not blame [Mr A] for the late review application, the applicant did not appear to be attempting to argue that it was ever lodged on time.

5. The Tribunal finds that the applicant is taken to have been notified of the decision [in] August 2017: s.494C of the Act. The Tribunal is satisfied on the evidence before it that the applicant was notified of the decision in accordance with the statutory requirements. Therefore the prescribed period to apply for review indeed ended [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

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

   Luke Hardy
   Member