1826137 (Refugee)

[2018] AATA 5121

1826137 (Refugee) [2018] AATA 5121 (7 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1826137

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Christine Cody

DATE:7 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 07 November 2018 at 11:35am

CATCHWORDS
REFUGEE – protection visa – Malaysia – applicant’s claims already reviewed by the Tribunal – 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. The applicant lodged an application for review to the Tribunal. Although the applicant had selected Class WC-030 on the application form, she had also referred to Department file number [deleted], which was the file containing the decision to refuse a protection visa application (subclass 866) on 19 September 2018. Further, although the applicant had stated that the date of decision that she sought to review was 1 August 2018, this appears to be the date that she was notified by the Tribunal of an earlier Tribunal decision (differently constituted) which found that there was no jurisdiction to conduct an application for review ([case number 1]) of the decision of the delegate to refuse to grant the applicant a protection visa. The Tribunal does not have jurisdiction to review its own decisions. Departmental records show that the only visa application refused was the decision to grant her a protection visa. The Tribunal thus finds that the applicant is seeking to review a decision of the delegate to refuse to grant a protection visa (subclass 866).

2. This is an application for review of a decision of a delegate of the Minister for Immigration on 19 September 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 7 September 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

3. 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.

4. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 19 September 2017 and dispatched by email. 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 19 September 2017: s.494C of the Act. Therefore the prescribed period to apply for review ended on 16 October 2017.

6. The Tribunal wrote to the applicant on 20 September 2018 noting that it appeared that the application for review was out of time, and asking for any comments by 4 October 2018. The letter also noted that the applicant had already sought to review the delegate’s decision to refuse to grant the applicant a protection visa and the Tribunal (differently constituted) found that there was no jurisdiction to conduct an application for review ([case number 1]).

7. The Tribunal did not receive a response to its letter.

8. As the application for review was not received by the Tribunal until 7 September 2018 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Christine Cody
   Member