1721551 (Refugee)

[2017] AATA 1972

1721551 (Refugee) [2017] AATA 1972 (10 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1721551

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 10:54am

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

CASES

DZAFH v Minister for Immigration [2017] FCCA 387

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 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 12 September 2017. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. On 15 September 2017, the Tribunal wrote to the applicant to advise on its preliminary views on the validity of the application and concerns that the Tribunal may have no jurisdiction to review the matter.

3. In a natural justice letter of 15 September 2017, seeking comments/response from the applicant, it was explained that her application for review may not be a valid application, as it appeared that the applicant was seeking to review a primary decision that had previously been decided upon by the Tribunal.  The applicant first lodged an application to have the departmental refusal reviewed by the Tribunal on 18 September 2016. The Tribunal (differently constituted) made a decision to affirm the visa refusal on 4 September 2017 (case number 1615060).  The applicant therefore made a second application for review of the same decision and the Tribunal is unable to review the same decision more than once.  For this reason, the Tribunal finds it has no jurisdiction to review the decision on the basis that the applicant’s application for review is not valid.

4. In addition, 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. As was also explained to the applicant in its natural justice letter of 15 September 2017, in DZAFH v Minister for Immigration [2017] FCCA 387, the Federal Circuit Court held that the prescribed period in r.4.31 commences on, and includes, the day the applicant is taken to have been notified of the decision: at [44]-[46].

5. The applicant responded to the Tribunal’s natural justice letter on 1 October 2017, by stating:

   I am Nur Ahfirah Binti Abdul Rahman to writing for apologies because before I mistake the date on the applications letter.  Actually the date decision is [day]-09-2017 but I was put [day]-07-2016.  So this is my fault and I am writing to say sorry.

6. The Tribunal observes that the primary decision was emailed to the applicant [in] August 2016, meaning that [day] August 2016 was the date on which the applicant was taken to have been notified.  In accordance with DZAFH, the last day for lodging the application for review was [in] September 2016.   As the application was not received until 12 September 2017, it was lodged outside the relevant timeframe. 

7. The Tribunal has had regard to the applicant’s comments in response to the natural justice letter but the Tribunal does not have discretion to take into account errors or misunderstandings by the applicant in terms of the timeframes for lodging applications for review.  In any event the matter remains that the application is also not a valid one as the Tribunal has no jurisdiction to review the same decision more than once.

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

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

   
   

   [in] August 2016: s.494C of the Act. Therefore the prescribed period to apply for review ended [in] September 2016. As the application for review was not received by the Tribunal until [day] 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

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

    Rosa Gagliardi
    Member