1726987 (Refugee)

[2017] AATA 2988

1726987 (Refugee) [2017] AATA 2988 (6 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1726987

MEMBER:Rosa Gagliardi

DATE:6 December 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 06 December 2017 at 3:24pm

CATCHWORDS

Refugee – Protection Visa – Malaysia – Decision already reviewed – No jurisdiction to review decision twice – Requirement to lodge application within 28 days of notification – Application not lodged in time

LEGISLATION
Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 338, 347, 411, 412
Migration Regulations 1994, r 4.02, 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. An application was made to the Tribunal on 2 November 2017 for review of a decision that the Tribunal has already reviewed.   For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

2. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to refuse visas of various kinds, but the evidence before the Tribunal that the applicant is seeking that the Tribunal review a decision that had already been reviewed.

3. On 13 November 2017, the Tribunal wrote to the applicant in the interests of natural justice providing its preliminary view that the applicant first lodged an application to have this decision reviewed on 13 June 2016 and the Tribunal made a decision to affirm the visa refusal on 13 September 2017 (case number 1608624).  The Tribunal noted that this was the applicant’s second application to the Tribunal for review of the same decision and that the Tribunal could not review a decision twice.

4. Furthermore, the Tribunal advised the applicant that it appeared that his application is not a valid one as it was not lodged within the relevant time limit. In addition, the Tribunal advised that pursuant to r.4.31(2) of the Migration Regulations 1994, the period in which an application for review of a Part 7-reviewable decision must be given to the Tribunal is 28 days, commencing on the day the applicant is notified of the decision. 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]. It was explained that as the primary decision was emailed to him [in] May 2016, this 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] June 2016.  As the application was not received until 2 November 2017, it appeared out of time.

5. The applicant was provided with an opportunity to comment, and on 9 November 2017 he wrote to the Tribunal stating that he was certain that he had used the correct form to lodge an application for review online and that he had been told that for a refugee review application there was no need for an upfront payment.  He also stated that he had lodged a new application.

6. The Tribunal has had regard to the information before it but is not satisfied that the applicant has filed a valid reviewable decision and finds that it was not properly made.  Further, the Tribunal also finds that the application was lodged out of time.   The Tribunal is not able to apply discretion in assessing this case and is required to follow the decision in DZAFH.

7. As there is no reviewable decision it follows that the application for review was not properly made and as the applicant was notified of the primary decision on [in] May 2016, the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Rosa Gagliardi
   Member