1834548 (Refugee)

[2019] AATA 3573

1834548 (Refugee) [2019] AATA 3573 (15 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1834548

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Alison Mercer

DATE:15 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 15 February 2019 at 6:50pm

CATCHWORDS

REFUGEE ­­­­­– protection visa – Malaysia – application made out of time – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 65, 494C
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 23 October 2018 to refuse to grant protection visas under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 23 November 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. As the applicants were not in immigration detention on the day the applicants were 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 (the Regulations).

3. The material before the Tribunal indicates that the applicants were notified of the decision by letter dated 23 October 2018 and dispatched by email to their nominated email address on the same date. The Tribunal is satisfied that the applicants were notified of the decision in accordance with the statutory requirements.

4. On 20 December 2018, the Tribunal wrote to the applicants to invite them to comment on whether their review application had been validly lodged. The Tribunal stated that it had formed a preliminary view that the review application was not valid as it appeared to have been lodged outside the prescribed time limit. The Tribunal noted that, pursuant to r.4.31(2) of the Regulations, the period in which an application for a Part 7-reviewable decision had to be given to the Tribunal was 28 days , commencing on the day on which the applicant was notified of the decision. The Tribunal further noted that 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 that decision: at [44] to [46]. The Tribunal stated that the primary decision was emailed to the applicants on 23 October 2018, which meant that 23 October 2018 was the date on which they were taken to be notified. In accordance with DZAFH, the last day for lodging the application was therefore 19 November 2018. However, as the review application was not received by the Tribunal until 23 November 2018, it appeared to have been made out of time. The applicants were advised that any comments they provided on this issue would be referred to a Tribunal Member, who would make a determination as to whether the review application had been validly made or not.

5. On 4 January 2019, the applicants responded by email to advise that after they received the primary refusal, they had just enough internet data to receive that email. They said that they also did not know what steps to take to apply to the Tribunal, and had to ask around to find this out. They stated ‘regarding to our mistakes while not have insufficient internet data balance every week, having made us late for applying tribunal, we are hoping you and your members can take a best decision about this… once again we are sorry due to our negligence to checking our email at all the time. Now we are learn by mistake and will keep up to date to have a look on email at all the time.’

6. The Tribunal finds that the applicants are taken to have been notified of the decision on 23 October 2018: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 19 November 2018.

7. As the application for review was not received by the Tribunal until 23 November 2018, the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter. The Tribunal notes the reasons given by the applicants for why they did not lodge the review application earlier, but it has no discretion within the Act or Regulations to waive or extend the prescribed period for lodgment of a review application, regardless of the reasons why an applicant may not have lodged a review application within that prescribed period.

   DECISION

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

   Alison Mercer
   Member