1803523 (Refugee)

[2018] AATA 498

1803523 (Refugee) [2018] AATA 498 (1 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1803523

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Nicola Findson

DATE:1 March 2018

PLACE OF DECISION:  Perth

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

Statement made on 01 March 2018 at 10:04am

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

LEGISLATION
Acts Interpretation Act 1901 s 36
Migration Act 1958, ss 36, 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] 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 on 9 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 [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. On 12 February 2018, the Tribunal wrote to the applicant by way of email correspondence, and advised that it had formed the view that his application was not a valid application because it had not been made within the relevant time limits.

5. The applicant was advised that the time limit was 28 days, commencing on the date on which he was taken to have received the notification of the primary decision.  The primary decision was emailed on [date] January 2018 and, on that basis, he was taken to have been notified on [date] January 2018.  He was advised that as he had not lodged his application until 9 February 2018, it appeared he was out of time.  He was invited to make any comments on whether he had made a valid application for review by 26 February 2018.

6. The applicant did not respond to the Tribunal’s letter.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on [date] January 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on [date] February 2018.

8. As the last day of the prescribed period fell on a Sunday, the applicant had until the end of the next day that was not a Saturday, a Sunday or a holiday to lodge his or her application, i.e. until [date] February 2018: s.36(2) of the Acts Interpretation Act 1901.

9. As the application for review was not received by the Tribunal until 9 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

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

    Nicola Findson
    Member