1726068 (Refugee)

[2017] AATA 3118

1726068 (Refugee) [2017] AATA 3118 (3 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1726068

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Dr Colin Huntly

DATE:3 November 2017

PLACE OF DECISION:  Perth

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

Statement made on 03 November 2017 at 3:25pm

CATCHWORDS

Refugee – Protection visa – Malaysia – Review application out of time

LEGISLATION
Migration Act 1958 (Cth), ss 65, 494C

Migration Regulations 1994 (Cth), r 4.31

CASES
Awon v MIBP [2015] FCA 846
Hamad v MIMA [2006] FMCA 1510
Haque v MIMIA [2006] FMCA 55
Lee v MIMA [2002] FCAFC 305
MZNAX v MIMIA [2004] FCA 1126
Singh v MIBP [2015] FCCA 1714
SZEBS v MIMIA [2006] FCA 456
VAQ v MIMA [2002] FCA 170
VOAM v MIMA [2003] FCA 396

Xie v MIMIA  [2005] FCAFC 172

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 15 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.

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 15 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. The Tribunal has had regard to a submission made by the applicant, forwarded to the Tribunal by email on 27 October 2017.  This submission states as follows:

   I am writing in relation to an application explain to the Migration and Refugee Division of the AAT the cause of the delay to lodge the application because myself ([name]) did not receive any notification or acknowledgement letter from  The Department regarding my application on 15 September 2017 as above case until I aware my visa 12 October 2017.

5. Once an applicant has been validly notified of the primary decision, the application for review must be lodged with the Tribunal within the relevant prescribed period.[1]  The Tribunal has no power to extend the time limit.[2] 

   [1]In Singh v MIBP [2015] FCCA 1714 (Judge Lucev, 23 June 2015) at [22] the Court held jurisdictional error was not established by the fact that the applicant only had a limited time in which to lodge the application for review and had no assistance from a representative in doing so.

   [2]Awon v MIBP [2015] FCA 846 (Judge Beach, 14 August 2015).

6. If an application is received outside the time period, the Tribunal has no jurisdiction.[3] 

   [3]See Lee v MIMA [2002] FCAFC 305 (Madgwick, Merkel and Conti JJ, 4 October 2002), at [10], [43], [45] and [47]; Haque v MIMIA [2006] FMCA 55 (McInnis FM, 31 January 2006); Hamad v MIMA [2006] FMCA 1510 (Scarlett FM, 27 September 2006) at [13]; MZNAX v MIMIA [2004] FCA 1126 (Ryan J, 25 August 2004) at [5] and [6]; Xie v MIMIA [2005] FCAFC 172 (Spender, Kiefel and Dowsett JJ, 23 August 2005), at [13]; SZEBS v MIMIA [2006] FCA 456 (Jacobson J, 27 April 2006) at [11] and [12]; VOAM v MIMA [2003] FCA 396 (French J, 15 April 2003); VAQ v MIMA [2002] FCA 170 (Sundberg, Marshall, Weinberg JJ, 27 February 2002).

7. This is the case even where the applicant is not at fault in making a late application.

8. The Tribunal finds that the applicant is taken to have been notified of the decision on 15 September 2017: s.494C of the Act. Therefore the prescribed period to apply for review ended on 12 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

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

   Dr Colin Huntly
   Member