1833653 (Refugee)

[2019] AATA 1036

1833653 (Refugee) [2019] AATA 1036 (9 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1833653

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 4:53pm

CATCHWORDS
REFUGEE –protection visa –Malaysia – application out of time – applicant notified in accordance to statutory requirements – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth) s 65
Migration Regulations 1994 (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 19 October 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 16 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 19 November 2018 the Tribunal wrote to the applicant in the interests of natural justice to advise that it appeared that her application for review was not valid as it had not been lodged within the relevant time limit. She was also advised that 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. The primary decision was emailed to the applicant on 19 October 2018, meaning that

   
   

   19 October 2018 was the date on which she was taken to have been notified.  In accordance with DZAFH, the last day for lodging the application for review was 15 November 2018.  As the application was not lodged until 16 November 2018 it appeared to be out of time.

5. The applicant was provided with the opportunity to comment in writing on the validity of the application by 3 December 2018 but she has declined to respond. 

6. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 19 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

   
   

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

   
   

   15 November 2018.

8. As the application for review was not received by the Tribunal until 16 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