1805695 (Refugee)

[2018] AATA 1002

1805695 (Refugee) [2018] AATA 1002 (26 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1805695

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Rosa Gagliardi

DATE:26 March 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 26 March 2018 at 3:35pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Application out of time – Tribunal notified the applicant – Prescribed period to apply for review ended

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994 r 4.31 Schedule 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] September 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 4 March 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. On 6 March 2018 the Tribunal wrote to the applicant in the interests of natural justice to advise that it appeared that his application was not valid as it was not lodged within the relevant time limit.  He was also advised that the period in which an application for review of a Part 7-reviewable decision must be given to the Tribunal is 28 days, commencing on the day the applicant is notified of the decision.  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].

   The primary decision was emailed to the applicant [in] September 2017 meaning that this was the date on which he was taken to have been notified.  In accordance with DZAFH, the last day for lodging the application for review was [a particular date in] October 2017.  As the application was not received until 4 March 2018, it appeared to be out of time.

4. The applicant was provided with the opportunity to comment on the validity of his application but he has elected not to respond.

5. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated [in] September 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

6. The Tribunal finds that the applicant is taken to have been notified of the decision [in] September 2017.  Therefore the prescribed period to apply for review ended on [a particular date in] October 2017.  As the application for review was not received by the Tribunal until 4 March 2018 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

7. The Tribunal advises that if the Tribunal receives any further documentation that appears to seek review of the same delegate’s decision, it will not treat it as a new application for review. It will not allocate a new case number, or ask the applicant to comment on the validity of any purported review application, or make a further decision about whether it has jurisdiction to review that decision. The Tribunal will instead advise the applicant that the Tribunal cannot consider this case further.

   DECISION

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

   Rosa Gagliardi
   Member