1813891 (Refugee)

[2018] AATA 1757

1813891 (Refugee) [2018] AATA 1757 (5 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1813891

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Paul Millar

DATE:5 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 05 June 2018 at 12:48pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Application out of time – No jurisdiction

LEGISLATION
Migration Act 1958, ss 36, 65
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 18 December 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 14 May 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 18 December 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.  By letter dated 18 May 2018 the Tribunal put to the applicant that the last day for lodging his application for review was 15 January 2018.  The Tribunal also put to the applicant that, therefore, because his application was not received until 14 May 2018, it appeared to be out of time. 

4. By email dated 1 June 2018, the applicant claimed that he did not receive the ‘email from Immigration office on time’. He also stated that the ‘Immigration officer’ failed to ‘mention clearly the commencing date of review period’.  As stated above, the evidence before the Tribunal indicates that the applicant was notified of the primary decision on 18 December 2017, the date the decision was dispatched to him by email.  In the primary decision, the delegate advised the applicant that the timeframe within which his application for review had to be made would commence on the day on which he was taken to have been notified of the primary decision and would expire at the end of 28 days.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 18 December 2017.  Therefore the prescribed period to apply for review ended on 14 January 2018.

6. As the application for review was not received by the Tribunal until 14 May 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.

   Paul Millar
   Member