1806225 (Refugee)

[2018] AATA 1067

1806225 (Refugee) [2018] AATA 1067 (9 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1806225

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Nicole Burns

DATE:9 April 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 09 April 2018 at 9:54am

CATCHWORDS
Refugee – Protection visa – Malaysia – Procedure and Practice – Invalid application – Application lodged out of time – No jurisdiction

LEGISLATION
Acts Interpretation Act 1901 s 36
Migration Act 1958, ss 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] August 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 8 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. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated [in] August 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 16 March 2018 the Tribunal wrote to the applicant inviting his comments on its preliminary view that the review application was lodged out of time.  On 5 April 2018 the Tribunal received an email from the applicant who states that his application was lodged late because his migration agent had not told him his visa had been refused and failed to lodge his review application.  The applicant also states that he has a genuine fear for his life in Malaysia.  The Tribunal has considered these submissions but notes that it has no discretion in this regard.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on [date] August 2017: s.494C of the Act. Therefore the prescribed period to apply for review ended on [date A] September 2017.

6. 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 B] September 2017: s.36(2) of the Acts Interpretation Act 1901.

7. As the application for review was not received by the Tribunal until 8 March 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.

   Nicole Burns
   Member