1831729 (Refugee)

[2018] AATA 4967

1831729 (Refugee) [2018] AATA 4967 (19 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1831729

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Luke Hardy

DATE:19 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 19 November 2018 at 11:25am

CATCHWORDS

REFUGEE – Protection visa – Malaysia – review application out of time – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 494C
Migration Regulations 1994, 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 17 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 29 October 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 17 August 2018 and dispatched by email. Therefore the prescribed period to apply for review would have ended on 13 September 2018

4. The Tribunal wrote to the applicant at his email address on 1 November 2018 to advise him of the jurisdictional issue and to invite him to comment by 15 November 2018 on whether a valid review application had been made. On 9 November 2018 the applicant replied saying that he attempted to lodge a review application on 20 September 2018. This, the Tribunal notes, would already have been out of time. The applicant went on to say that after a further month he noticed he had not successfully lodged his application and thus resubmitted it. He submitted to the tribunal a saved copy of the review application he lodged on 20 September 2018.

5. On the evidence before it, the Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. The Tribunal finds that the applicant is taken to have been notified of the decision on 17 August 2018: s.494C of the Act. Therefore the prescribed period to apply for review indeed ended on 13 September 2018. Even successfully submitting it on 20 September 2018 would have been outside of the statutory time limit.

6. As the application for review was not received by the Tribunal until 29 October 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.

   Luke Hardy
   Member