1803709 (Refugee)

[2018] AATA 666

1803709 (Refugee) [2018] AATA 666 (16 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1803709

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Rosa Gagliardi

DATE:16 March 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 16 March 2018 at 11:37am

CATCHWORDS
Refugee – Protection visa – Malaysia – No jurisdiction – Application not valid – Not lodged within statutory timeframe – Multiple applications for review on same issues

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, r 4.31(2)

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] July 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 12 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 [date] July 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 applicant was advised in the interests of natural justice by letter on 19 February 2018 that the application did not appear to be a valid one as it was not lodged within the relevant time.  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 applicant is taken to have been notified of the decision: at [44]-[46].

5. The Tribunal finds that the applicant is taken to have been notified of the decision on [date] July 2017.  Therefore the prescribed period to apply for review ended on [date] July 2017.

6. The Tribunal notes that the applicant has made multiple applications to review the same issue with the repeated result that the Tribunal does not have jurisdiction in this matter.  This raises questions as to why the applicant continues to make futile applications for review.  If it is that she is seeking to remain in Australia then the Tribunal would encourage her to liaise with the Department of Home Affairs to discuss her options for regularising her status.

7. As the application for review was not received by the Tribunal until 12 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

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

   Rosa Gagliardi
   Member