1732866 (Refugee)

[2018] AATA 423

1732866 (Refugee) [2018] AATA 423 (29 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1732866

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Rosa Gagliardi

DATE:29 January 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 29 January 2018 at 9:38am

CATCHWORDS
Refugee – Protection visa – No jurisdiction – Malaysia – Invalid application – Filed out of time – No response to opportunity to provide comments

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, r 4.31(2)

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 24 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: r.4.31(2) of the Migration Regulations 1994.

3. On 28 December 2018 the Tribunal wrote to the applicant in the interests of natural justice to advise that it appeared that the application was not a valid one as it had been filed out of time. 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 n, and includes, the day the applicant is taken to have been notified of the decision: at [44]-[46].

4. As the primary decision was emailed to the applicant [in] November 2017, this was the date on which she was taken to have been notified.  In accordance with DZAFH, the last day for lodging the application for review was [date] December 2017.  The applicant was put on notice that as the application was not received until 24 December 2017, it appeared to be out of time.

5. The applicant was provided with the opportunity to provide comments on whether a valid visa application had been made but she has declined to respond.

6. 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.

7. The Tribunal finds that the applicant is taken to have been notified of the decision [in] November 2017 as per the relevant Regulations. Therefore the prescribed period to apply for review ended [in] December 2017.

8. As the application for review was not received by the Tribunal until 24 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

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

   Rosa Gagliardi
   Member