1826869 (Refugee)

[2018] AATA 5923

1826869 (Refugee) [2018] AATA 5923 (11 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1826869

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Mara Moustafine

DATE:11 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 11 October 2018 at 1:21pm

ATCHWORDS

REFUGEE – protection visa – Malaysia – notification of decision – review application lodged out of time – no response – no jurisdiction 

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth),rr 2.55, 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 14 August 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 11 September 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 14 August 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 formed the preliminary view that it did not have jurisdiction in the matter because the application lodged on 11 September 2018 was not lodged within the relevant time limit – 28 days from the day on which the applicant was taken to have been notified of the primary decision. The primary decision was emailed to the applicant on 14 August 2018 meaning that 14 August 2018 was the date on which he was taken to have been notified. In accordance with DZAFH, the last day for lodging the application for review was 10 September 2018. As the application was not received until 17 September 2018, it appeared to be out of time.

5. An officer of the Tribunal wrote to the applicant on 20 September 2018 inviting him to make any comments on the validity of the application for review by 4 October 2018. The letter was despatched by email to the address provided by the applicant in his application.

6. However, no response was received from the applicant.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 14 August 2018: r.2.55 of the Regulations. Therefore the prescribed period to apply for review ended on 10 September 2018.

8. As the application for review was not received by the Tribunal until 11 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.

   Mara Moustafine
   Member