1730351 (Refugee)

[2018] AATA 61

1730351 (Refugee) [2018] AATA 61 (10 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1730351

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Brendan Darcy

DATE:10 January 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 10 January 2018 at 4:32pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Application lodged out of time – No jurisdiction

LEGISLATION
Migration Act 1958, ss 65, 494C

Migration Regulations 1994, Schedule 2, 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] 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 3 December 2017. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

   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].

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

3. On 13 December 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 27 December 2017. No subsequent 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.

4. The Tribunal notes that the review application was lodged [a number of] days later than [a date in] November 2017 with its application not being received until 3 December 2017. It also notes a letter was submitted on the same date as the review application was lodged and that the applicant did not raise any matters about his applicant being out of time.

5. The Tribunal does not have any 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] November 2017: s.494C of the Act. Therefore the prescribed period to apply for review ended [in] November 2017. As the application for review was not received by the Tribunal until 3 December 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