1806735 (Refugee)

[2018] AATA 1066

1806735 (Refugee) [2018] AATA 1066 (5 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1806735

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Brendan Darcy

DATE:5 April 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 05 April 2018 at 11:36am

CATCHWORDS
Refugee – Protection visa – Malaysia – Notified in accordance with the statutory requirements – No Jurisdiction


LEGISLATION

Acts Interpretation Act 1901

Migration Act 1958, ss 36(2), 65, 494C,

Cases

DZAFH v Minister for Immigration [2017]

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] February 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 [date] 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. 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].

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated [in] February 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 19 March 2018, the Tribunal emailed correspondence to the applicant, inviting the applicant to comment on the validity of the application for review and to forward written submissions to the Tribunal by 3 April 2018. On 31 March 2018, the applicant responded to the invitation to comment by email. The email apologised for the late review application and stating that he was unable to recharge her mobile and was therefore unable to check his emails.

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

6. As the last day of the prescribed period fell on a Sunday ([date A] March 2018), 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] March 2018: s.36(2) of the Acts Interpretation Act 1901.

7. The Tribunal notes that the review application was lodged notably later than [date B] March 2016 with its application not being received until [date C] March 2018.

8. While the Tribunal considers the stated reasons for his late application for review to be unpersuasive and unsatisfactory given the applicant’s access to email is not restricted to his mobile phone, the Tribunal does not have any power to extend the time to lodge a valid application, even when there are compelling and compassionate circumstances. 

9. As the application for review was not received by the Tribunal until [date C] 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

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

    Brendan Darcy
    Member