1833946 (Refugee)

[2019] AATA 1343

1833946 (Refugee) [2019] AATA 1343 (16 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1833946

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Alison Mercer

DATE:16 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 16 January 2019 at 9:49am

CATCHWORDS
REFUGEE – protection visa – Malaysia – application lodged outside the prescribed period – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth) r 4.31 Schedule 2

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 19 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 19 October 2018 and dispatched by email to the applicant’s nominated email address. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 19 December 2018, the Tribunal wrote to the applicant to invite him to comment on whether his review application had been validly lodged. He was advised that a preliminary view had been formed that it had not been, as it appeared to have been lodged outside the prescribed period, which ended on 15 November 2018. He was further advised that a decision about whether the application had been validly lodged would be made by a Tribunal Member, and that any comments he wished to make about the issue of validity would be taken into account if received by 2 January 2019.

5. On 31 December 2018, the applicant sent an email to the Tribunal in which he said that he had made a mistake because he did not know how to apply to the Tribunal, and when he found out, it was already too late. He expressed the hope that the Tribunal would give him another chance as he was not ready to return to his home country yet and was planning to marry his partner in Australia.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 19 October 2018: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 15 November 2018.

7. As the application for review was not received by the Tribunal until 19 November 2018, the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.  There is no power in the Act or Regulations that allows the Tribunal to waive or extend the prescribed period.

   DECISION

8. The Tribunal does not have jurisdiction in this matter.

   Alison Mercer
   Member