1833523 (Refugee)

[2019] AATA 4371

1833523 (Refugee) [2019] AATA 4371 (9 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1833523

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Rosa Gagliardi

DATE:9 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 09 January 2019 at 5:18pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – application not lodged within time limit – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations (Cth), r 4.31

CASES

DZAFH v Minister for Immigration [2017] FCCA 387

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 20 June 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 15 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. On 15 November 2018 the Tribunal wrote to the applicant in the interests of natural justice to advise that it appeared that his application was not a valid one as it was not lodged within the relevant time limit. Pursuant to r.4.31(2) of the Migration Regulations 1994, the period in which an application for review of a Part 7-reviewable decision must be given to the Tribunal is 28 days, commencing on the day the applicant is notified of the decision. In DZAFH v Minister for Immigration [2017] FCCA 387, the Federal Circuit Court held that the prescribed period in r.4.31 commences on, and includes, the day the applicant is taken to have been notified of the decision: at [44]-[46].

4. It was further explained that as the primary decision was emailed to him on 15 October 2018, 15 October 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

   
   

   12 November 2018.  As the application was not received until 15 November 2018, it appeared to be out of time.

5. The applicant was provided with an opportunity to comment on the validity of his application but he has declined to do so.

6. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 15 October 2018 and dispatched by email. 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

   
   

   15 October 2018.  Therefore the prescribed period to apply for review ended on

   
   

   11 November 2018.

8. As the application for review was not received by the Tribunal until 15 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.

   Rosa Gagliardi
   Member