1725937 (Refugee)

[2017] AATA 2362

1725937 (Refugee) [2017] AATA 2362 (13 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1725937

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Brendan Darcy

DATE:13 November 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 13 November 2017 at 9:48am

CATCHWORDS
Refugee – Protection visa – Malaysia – Out of time – No jurisdiction

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

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] 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 24 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. . 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].

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated [in] September 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 25 October 2017, the Tribunal emailed correspondence to the applicant, inviting the applicant to comment on the validity of the application for review and to forward written submissions to the Tribunal by 8 November 2017. No submissions or comments at all, either by the applicant or on his behalf, were forwarded to the Tribunal, right up to the time of making his decision.

5. The Tribunal acknowledges the application was received only one day late. However the Tribunal has no power to extend the time to lodge a valid application.

6. The Tribunal finds that the applicant is taken to have been notified of the decision [in] September 2017: s.494C of the Act. Therefore the prescribed period to apply for review ended [in] October 2017. As the application for review was not received by the Tribunal until 24 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

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

   Brendan Darcy
   Member