1730315 (Refugee)

[2018] AATA 96

1730315 (Refugee) [2018] AATA 96 (5 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1730315

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Jason Pennell

DATE:5 January 2018

PLACE OF DECISION:  Melbourne

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

Statement made 5 January 2018 at 10.24am

CATCHWORDS
Refugee – Protection visa – Malaysia – Procedural issues – Application out of time

LEGISLATION
Migration Act 1958, ss 65, 431, 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.

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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]November 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 2 December 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.[1]

   [1] 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 2 November 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. By a letter dated 12 December 2017 the Tribunal advised the applicant that his application appeared to be out of time due to the fact that it was not lodged within the relevant time period. The Tribunal invited the applicant to make any comments in writing as to whether a valid application had been made by 27 December 2017. By an email dated 24 December 2017 the applicant provided to the Tribunal further documentation that did not address the issue as to whether a valid application had been made. 

5. The Tribunal finds that the applicant is taken to have been notified of the decision [in] November 2017.[2] Therefore the prescribed period to apply for review ended on [date] November 2017. As the application for review was not received by the Tribunal until 2 December 2017 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   [2] s.494C of the Act

   DECISION

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

   Jason Pennell
   Member