1809289 (Refugee)

[2018] AATA 1316

1809289 (Refugee) [2018] AATA 1316 (2 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1809289

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Mireya Hyland

DATE:2 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 02 May 2018 at 8:20pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Review application out of time – Misunderstanding over primary decision date

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 6 March 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 April 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. In his review application form the applicant put that the decision under review was made and notified on 13 March 2018. The review application indicates that the applicant is seeking review of a Visa Class XA Subclass 866 visa refusal related to Department file [number]. The Department’s records show that the only decision made on a Subclass 866 protection visa application in relation to that file was made on 6 March 2017. The Tribunal notes that on 13 March 2018 it made a decision that it did not have jurisdiction in a previous review application lodged on 3 March 2018 (AAT1805649). The applicant provided that decision together with the Tribunal’s notification letter with his current review application.

3. The Tribunal finds that given the evidence above, and as there is no delegate’s decision dated 13 March 2018, the decision under review is the decision made on 6 March 2017.

4. Because 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.

5. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 6 March 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 on 6 March 2017: s.494C of the Act. Therefore the prescribed period to apply for review ended on 2 April 2017. 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 application, i.e. until 3 April 2017: s.36(2) of the Acts Interpretation Act 1901.

7. Since the application for review was not received by the Tribunal until 4 April 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.

   Mireya Hyland
   Member