1832990 (Refugee)

[2018] AATA 5893

1832990 (Refugee) [2018] AATA 5893 (20 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1832990

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:David McCulloch

DATE:20 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 20 December 2018 at 9:23am

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 8 April 2016 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 9 November 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 8 April 2016 and dispatched by post.

4. The Tribunal wrote to the applicant on 14 November 2018 indicting that records indicate that the primary decision was posted to the applicant on 8 April 2016 meaning that 19 April 2016 was the date on which she was taken to have been notified. On that basis, the last day for lodging the application for review was 16 May 2016. As the application was not received until 9 November 2018, it appears to be out of time. 

5. The applicant was given the opportunity to respond to this preliminary view of the Tribunal. No response was received by the applicant.

6. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 19 April 2016: s.494C of the Act. Therefore the prescribed period to apply for review ended on 16 May 2016.

8. As the application for review was not received by the Tribunal until 9 November 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.

   David McCulloch
   Member