1725245 (Refugee)

[2018] AATA 3803

1725245 (Refugee) [2018] AATA 3803 (15 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1725245

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Tania Flood

DATE:15 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 15 August 2018 at 12:03pm

CATCHWORDS
REFUGEE – Protection visa – Malaysia – Review application lodged out of time – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 19 September 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 17 October 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 19 September 2017 and dispatched by email.

4. On 16 July 2018 the Tribunal wrote to the applicant advising him that his application for review appears not to be a valid application as it was not lodged within the relevant time limit.  The applicant was invited to make any comments on whether a valid application has been made in writing by 30 July 2018.  On 30 July 2018 the applicant emailed a response to the Tribunal which appears in the subject line of the email.  The response clarifies that he received the department’s letter of refusal on 19 September 2017.  It further states that he tried asking some friends to help him lodge the review application online but that “unfortunately all of my friends don’t kn…..”.

5. The Tribunal is satisfied that the notification of the department’s decision which was sent to the applicant on 19 September 2017 to the email address provided by the applicant clearly informed the applicant that any review of the matter had to be made within 28 days of the date on which he is taken to have been notified of the decision. 

6. The Tribunal acknowledges the reason provided by the applicant for the late submission of the application for review but finds that it does not raise any issues regarding any breaches of the notification requirements. 

7. 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 19 September 2017 in accordance with s.494C of the Act. Therefore the prescribed period to apply for review ended on 16 October 2017.

9. As the application for review was not received by the Tribunal until 17 October 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.

    Tania Flood
    Member