1800470 (Refugee)

[2018] AATA 727

1800470 (Refugee) [2018] AATA 727 (12 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1800470

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:James Silva

DATE:12 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 12 March 2018 at 2:02pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Application was not lodged within the prescribed period

LEGISLATION
Migration Act 1958, s.36, s.65, s.494C
Migration Regulations 1994, Schedule 2 s.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.

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 [date] December 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 6 January 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated [date] December 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. The Tribunal finds that the applicant is taken to have been notified of the decision on [date] December 2017: s.494C of the Act.

3. 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. Therefore the prescribed period to apply for review ended on [date]. As the last day of the prescribed period fell on a Sunday, and the following day, [date], was a public holiday, the applicant had until [date] to lodge his application: s.36(2) of the Acts Interpretation Act 1901.

4. The Tribunal wrote to the applicant on 16 February 2018, advising of its preliminary view that his application was not valid, as it was not lodged within the prescribed period. In his written comments, received by email on 21 February 2018, the applicant wrote that he had waited until the expiry of his bridging visa, and did not have anyone to assist him with his application for review. The Tribunal notes these comments, but in any event, r.4.31(2) does not give it any discretion to waive or adjust the prescribed period within which a valid application for review may be made.

5. As the application for review was not received by the Tribunal until [date] January 2018 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   James Silva
   Member