1833765 (Refugee)

[2019] AATA 1286

1833765 (Refugee) [2019] AATA 1286 (9 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1833765

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 4:01pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – Application made out of time – 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 7 September 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 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 21 November 2019 the Tribunal wrote to the applicant in the interests of natural justice to advise that it appeared that his application for review was not a valid one as it was not lodged within the relevant time. 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 to the applicant that as the primary decision was posted to him on

   
   7 September 2016

   , 7 September 2016 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 13 October 2016.  As the application was not received until 16 November 2018, it appeared to be out of time.

5. The applicant was provided with the opportunity to comment on whether he had made a valid application in writing by 5 December 2018.  The applicant failed to respond to the issues above within this time limit, but wrote to the Tribunal on 8 January 2019, stating he as yet had not received a decision, and his visa would expire on 20 January 2019 and he wanted the decision before then.

6. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 7 September 2016 and dispatched by post. 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

   
   

   7 September 2016.  Therefore the prescribed period to apply for review ended on

   
   

   13 October 2016.

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