1722958 (Refugee)

[2017] AATA 3132

1722958 (Refugee) [2017] AATA 3132 (19 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1722958

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Peter Vlahos

DATE:19 October 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 19 October 2017 at 7:51am

CATCHWORDS
Refugee – Protection visa – Malaysia– Invalid application – Application out of time –  No jurisdiction

LEGISLATION
Migration Act 1958, ss 65, 494C
Migration Regulations 1994, r 4.31

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 on 21 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 25 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 21 August 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The Tribunal wrote to the applicant on 27 September 2017[1] advising that his application for review had not been lodged within the required time limit. The time limit was 28 days from the date the applicant had been notified of the primary decision. The Tribunal from the information on its file notes that the primary decision was emailed to the applicant on 21 August 2017[2], and on that basis that date was the date on which the applicant was taken to have been notified. Therefore, the last date for lodging an application for review was 18 September 2017. However, the application for review was received by the Tribunal on 25 September 2017. 

   [1]AAT File 1722958 folio no. 10

   [2]Ibid at Folio 19 (AAT File)

5. In the Tribunal’s letter to the applicant dated 28 September 2017, the Tribunal invited the applicant to make comment and to do so in writing by 11 October 2017 on whether a valid application had been submitted to the Tribunal.

6. As at the writing of this decision no response had been provided by the applicant to the Tribunal providing any explanation concerning his circumstances.

7. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 21 August 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

8. The Tribunal finds that the applicant is taken to have been notified of the decision on 21 August 2017: s.494C of the Act. Therefore the prescribed period to apply for review ended on 18 September 2017. As the application for review was not received by the Tribunal until 25 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

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

   Peter Vlahos
   Member