1803589 (Refugee)

[2018] AATA 1000

1803589 (Refugee) [2018] AATA 1000 (12 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1803589

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 1:30pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Review application out of time

LEGISLATION
Migration Act 1958, ss 36, 65, 494C, 499
Migration Regulations 1994, r 4.31

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] January 2018 to refuse to grant protection visas under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on [a date in] February 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 applicants were notified of the decision by letter dated [on a date in] January 2018 and dispatched by email. The Tribunal is satisfied that the applicants were notified of the decision in accordance with the statutory requirements. The Tribunal finds that the applicants were taken to have been notified of the decision on [that date in] January 2018: s.494C of the Act.

3. As the applicants were not in immigration detention on the day they were 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. In DZAFH v Minister for Immigration [2017] FCCA 387, the Federal Circuit Court held that the prescribed period in r.4.31 commences on, and includes, the day the applicants were taken to have been notified of the decision: at [44] – [46]. Therefore the prescribed period to apply for review ended on [a specified date in] February 2018. As the last day of the prescribed period fell on a Sunday, the applicants had until the end of the next day that was not a Saturday, a Sunday or a holiday to lodge their application for review, i.e. until [the following day]: s.36(2) of the Acts Interpretation Act 1901.

4. The Tribunal wrote to the applicants on [a later date in] February 2018, advising of its preliminary view that their application was not valid, as it was not lodged within the prescribed period. The Tribunal received no response to this letter.

5. As the application for review was not received by the Tribunal until [a specified date in] 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

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

   James Silva
   Member