1809318 (Refugee)

[2018] AATA 1697

1809318 (Refugee) [2018] AATA 1697 (2 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1809318

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Rosa Gagliardi

DATE:2 May 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 02 May 2018 at 10:42am

CATCHWORDS
Refugee – Protection visa – Malaysia – Review application out of time

LEGISLATION
Migration Act 1958, ss 65, 431
Migration Regulations 1994, r 4.31

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 on 23 January 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 3 April 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 11 April 2018 the Tribunal wrote to the applicant in the interests of natural justice to advise that it appeared that her application was not a valid one as it was not lodged within the relevant time limit.  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].

4. The Tribunal explained to the applicant that as the primary decision had been emailed to her on 23 January 2018, this was the date on which she was taken to have been notified.  In accordance with DZAFH, the last day for lodging the application for review was 19 February 2018.  As the application was not received until 3 April 2018, it appeared to be out of time.

5. In an undated letter to the Tribunal the applicant wrote that the lateness of the application was due to an email password problem as she could not log into her email for a couple of weeks.  She hoped she still had a chance to apply for review.  The Tribunal does not have the powers, however, to take into account the reasons for any delay in lodging an application.  The time frames are applied consistently.  The Tribunal appreciates that the applicant may be disappointed with this decision, but the Tribunal does not have discretion to vary the time limits within which applications for review must be lodged.

6. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 23 January 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.  The Tribunal finds that the applicant is taken to have been notified of the decision on 23 January 2018.  Therefore the prescribed period to apply for review ended on 19 February 2018.  As the application for review was not received by the Tribunal until 3 April 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 also advises that if it 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