1825108 (Refugee)

[2018] AATA 3612

1825108 (Refugee) [2018] AATA 3612 (13 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1825108

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Alison Mercer

DATE:13 September 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 13 September 2018 at 4:56pm

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 31 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 28 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 she 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. On 29 August 2018, the Tribunal wrote to the applicant to invite her to comment on the validity of her review application. In particular, the letter advised her that it appeared that her review application was invalid as it had been lodged outside the relevant time limit set out in r.4.31(2) of the Regulations, which prescribed a 28 day period commencing on the date on which she was notified of the decision (the date that the email notification of the refusal of her protection visa was sent). The letter noted that the refusal decision was emailed to the applicant on 31 July 2018, and therefore the last day for lodgment of the review application was 27 August 2018. However, as her review application was received by the Tribunal on 28 August 2018, it appeared to be out of time. The applicant was advised that she could provide comments or a response to this issue by 12 September 2018, and that any response or comments received would be considered by a Tribunal Member, who would ultimately determine whether the review application had been validly lodged.

3. The Tribunal received a response by email on 7 September 2018, in which she stated that she was unable to lodge the appeal within time as her phone broke and she had no access to a lap top. She therefore only got the email from the Department on 28 August 2018 after she bought a new phone and she lodged the appeal with the Tribunal immediately. She apologised for doing so outside the time frame but asked that the Tribunal Member to accept her explanation.

4. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 31 July 2018 and dispatched by email to the address nominated by the applicant in her protection visa application. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 31 July 2018: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 27 August 2018. The Tribunal has no power to waive or overlook this period.

6. As the application for review was not received by the Tribunal until 28 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

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

   Alison Mercer
   Member