1803047 (Refugee)

[2018] AATA 642

1803047 (Refugee) [2018] AATA 642 (6 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1803047

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Peter Vlahos

DATE:6 March 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 06 March 2018 at 11:24am

CATCHWORDS
Refugee – Protection visa – Malaysia – No jurisdiction - Application received out of time – No response to invitation to explain why

LEGISLATION
Migration Act 1958, ss 65, 494C
Migration Regulations 1994, Schedule 2, r 4.31(2)

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] January 2018 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 [in] February 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 8 January 2018 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 12 February 2018[1] advising the applicant that his application for review had not been lodged within the required time limit. The time limit was 28 days from the date the applicant had been notified of the primary decision. The Tribunal from the information on its file notes, that the primary decision was emailed on 8 January 2018, and on that basis that date was the date on which the applicant was taken to have been notified. Therefore, the last date for lodging an application for review was 5 February 2018. However, the application for review was received by the Tribunal on 6 February 2018.

   [1] AAT File 1803047 Folio 38-37

5. Also, in its letter dated 12 February 2018, the applicant was provided with the opportunity to provide written reasons on whether a valid application had been submitted to the Tribunal, and those reasons should be forwarded to the Tribunal by the 26 February 2018.

6. As at the writing of this decision by the Tribunal, the applicant had not provided a submission as far as it concerned his application not having met legislative mandated timeframes.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 8 January 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 5 February 2018. As the application for review was not received by the Tribunal until 6 February 2018 application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

8. As the application for review was not received by the Tribunal until 6 February 2018 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.

   Peter Vlahos
   Member