1811416 (Refugee)

[2018] AATA 1701

1811416 (Refugee) [2018] AATA 1701 (15 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1811416

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Michael Hawkins

DATE:15 May 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 15 May 2018 at 3:46pm

CATCHWORDS
Refugee – Protection Visa – Malaysia – Application not made within required timeframe

LEGISLATION
Migration Act 1958, ss 65, 494C
Migration Regulations 1994, 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

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 22 March 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 22 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. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 22 March 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The Tribunal wrote to the applicant on 26 April 2018 inviting comments on whether a valid application had been made requesting a response by 10 May 2018. On 13 May 2018, at 10.15pm, the applicant responded to the Tribunal. The applicant blamed a lack of English and not having enough money to retain a lawyer as reasons for his late lodgement. The applicant also advised that a friend who had been assisting with the application had returned to Malaysia. The applicant also claimed that the address of the friend was that used for notification of the decision of the delegate. The Tribunal has confirmed that the delegate’s decision was correctly notified to the address provided by the applicant. The Department can do no more than issue communications to that address notified by an applicant as his/her address for service. The Tribunal further notes that it communicated with the applicant at the email address provided in the review application, and notwithstanding this, the applicant was still late in responding to the Tribunal’s most recent correspondence. The applicant has not provided a reasonable explanation for the delay.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 22 March 2018. Therefore the prescribed period to apply for review ended on 18 April 2018.

6. As the application for review was not received by the Tribunal until 22 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

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

   Michael Hawkins
   Member