1808511 (Refugee)

[2018] AATA 2165

1808511 (Refugee) [2018] AATA 2165 (18 April 2018)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1808511

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Peter Vlahos

DATE OF DECISION:  18 April 2018

DATE CORRIGENDUM

SIGNED:23 May 2018

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

1. The date ‘25 March 2018’ in paragraph 7 should be replaced with ‘26 March 2018’.

   Peter Vlahos
   Member

   
   

   DECISION RECORD

   DIVISION:Migration & Refugee Division

   CASE NUMBER:  1808511

   COUNTRY OF REFERENCE:                  Malaysia

   MEMBER:Peter Vlahos

   DATE:18 April 2018

   PLACE OF DECISION:  Melbourne

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

   Statement made on 18 April 2018 at 6:39am

   CATCHWORDS

   Refugee – Protection visa – Malaysia – Review application lodged out of time – No jurisdiction

   LEGISLATION

   Migration Act 1958, ss 65, 494

   Migration Regulations 1994, Schedule 2, r 4.31(2)

   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

2. This is an application for review of a decision of a delegate of the Minister for Immigration on 26 February 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 27 March 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

3. 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.

4. The Tribunal wrote to the applicant on 3 April 2018[1] advising the applicant that his application for review had not been lodged within the required time limit. The time limit was 28 days from the date the applicant had been notified of the primary decision. The Tribunal from the information on its file notes, that the primary decision was emailed on 26 February 2018, and on that basis that date was the date on which the applicant was taken to have been notified. Therefore, the last date for lodging an application for review was 26 March 2018. However, the application for review was received by the Tribunal on 27 March 2018.

   [1] AAT File 1808511 Folio [11]

5. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 26 February 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

6. Also, in its letter dated 3 April 2018, the applicant was provided with the opportunity to provide written reasons on whether a valid application had been submitted to the Tribunal, and those reasons should be forwarded to the Tribunal by the 17 April 2018.

7. On 15 April 2018 the applicant wrote to the Tribunal claiming that he was unable to submit an application for review within the time-limits allowed because he was unable to observe his emails via his mobile phone which was not functioning. While the Tribunal acknowledges the applicant’s reasons it also must emphasise that at all times, all means of known communication between the Department, Tribunal and the applicant must be clear of any interference or breakdown. The applicant must at all times ensure that all channels of communication must be in place and functioning. This is his on-going responsibility and one that must not be neglected as it was on this occasion.

8. The Tribunal finds that the applicant is taken to have been notified of the decision on 26 February 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 25 March 2018.

9. As the application for review was not received by the Tribunal until 27 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.

    Peter Vlahos
    Member