1822164 (Refugee)

[2018] AATA 3259

1822164 (Refugee) [2018] AATA 3259 (21 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1822164

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:David McCulloch

DATE:21 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 21 August 2018 at 9:16am

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

LEGISLATION
Migration Act 1958(Cth), ss 65, 494C
Migration Regulations 1994 (Cth), 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 2 July 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 31 July 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 2 July 2018 and dispatched by email.

4. The Tribunal wrote the applicant on 3 August 2018 indicating that, given that the refusal decision was emailed to the applicant, 2 July 2018 is the date on which she is taken to have been notified of the decision. On that basis, the last day for lodging the application for review was 30 July 2018. However, as the application was not received until 31 July 2018, it appeared to be out of time. The applicant was given the opportunity to respond to this preliminary view of the Tribunal.

5. The letter also referred to a recent decision of the Federal Circuit Court which held that the prescribed period commences on, and includes, the day the applicant is taken to have been notified of the decision.

6. In a response by email of 3 August 2018, the applicant admits that it was her mistake. She just realised that she should count the first day. She says that she got confused with the visa expiry date of 6 August 2018 and just kept focusing on that date. She asks for advice as to what she can do to solve the issue.

7. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

8. The Tribunal finds that the applicant is taken to have been notified of the decision on 2 July 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 30 July 2018.

9. As the application for review was not received by the Tribunal until 31 July 2018 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter. The Tribunal has no discretion in to consider the matters raised by the applicant to explain why there was not strict compliance with the time requirements.

   DECISION

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

    David McCulloch
    Member