1801567 (Refugee)

[2018] AATA 443

1801567 (Refugee) [2018] AATA 443 (16 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1801567

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Nicole Burns

DATE:16 February 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 16 February 2018 at 9:40am

CATCHWORDS

Refugee – Protection visa – Malaysia – Late lodgement – No jurisdiction to review the decision

LEGISLATION
Migration Act 1958, ss 65, 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.

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] 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 22 January 2018. 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. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated [date] 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. The Tribunal wrote to the applicant on 24 January 2018 inviting the applicant’s comments on its preliminary view that his review application was lodged out of time, by 7 February 2018.  On 24 January 2018 the Tribunal received an email from the applicant with a letter attached of the same date in which he acknowledges that he did not submit his application during the timeframe given and notes that he is having a difficult time to find someone to help him with the matter since he cannot understand English very well.  The Tribunal sent a further letter on 25 January 2018 to the applicant, inviting his comments about the review application being lodged out of time, noting that the previous invitation to comment was defective and setting out a new date to provide a response by 8 February 2018.  No further response was received. 

5. The Tribunal has taken into account the applicant’s response that he is having difficulty finding someone to help him with his review application.  However it has no discretion to extend the timeframe for lodgement of the review application. 

6. The Tribunal finds that the applicant is taken to have been notified of the decision on [date] November 2017: s.494C of the Act. Therefore the prescribed period to apply for review ended on [date] 2017.

7. As the application for review was not received by the Tribunal until 22 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

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

   Nicole Burns
   Member