1814321 (Refugee)

[2018] AATA 2554

1814321 (Refugee) [2018] AATA 2554 (11 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1814321

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Rosa Gagliardi

DATE:11 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 11 June 2018 at 5:10pm

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

LEGISLATION
Migration Act 1958, s 65
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 9 April 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 17 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. On 18 May 2018 the Tribunal wrote to the applicant in the interests of natural justice to advise that her application for review was not valid as it was not lodged within the relevant time limit. Pursuant to r.4.31(2) of the Migration Regulations 1994, 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 that the primary decision was emailed to the applicant on 9 April 2018 meaning that 9 April 2018 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 7 May 2018. As the applicant filed her application on 17 May 2018, it appeared that her application was not lodged within the relevant time limit.

5. The applicant was provided an opportunity to comment on the validity of her application but she has elected not to respond.

6. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 9 April 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

7. As the application for review was not received by the Tribunal until 17 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

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

   Rosa Gagliardi
   Member