1822781 (Refugee)

[2018] AATA 5169

1822781 (Refugee) [2018] AATA 5169 (3 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1822781

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Angela Cranston

DATE:3 September 2018

PLACE OF DECISION:  Sydney

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

Statement made on 03 September 2018 at 2:38pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – Application made out of time – No jurisdiction

LEGISLATION
Acts Interpretation Act 1901 (Cth), s 36
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 9 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 7 August 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 9 July 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 at the applicant’s most recently advised email address on 16 August 2018 stating that it was of the view that the review application was out of time and asking for comments. The applicant did not respond. 

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 9 July 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 5 August 2018.

6. As the last day of the prescribed period fell on a Sunday, the applicant had until the end of the next day that was not a Saturday, a Sunday or a holiday to lodge his or her application, i.e. until 6 August 2018: s.36(2) of the Acts Interpretation Act 1901.

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

   Angela Cranston
   Member