1900082 (Refugee)

[2019] AATA 1402

1900082 (Refugee) [2019] AATA 1402 (22 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1900082

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Jason Pennell

DATE:22 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 22 January 2019 at 1.45pm

CATCHWORDS

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

LEGISLATION

Administrative Appeals Act 1975 (Cth), ss 24Z, 29
Migration Act 1958 (Cth), ss 65, 412(1)(b), 494C
Migration Regulations 1994 (Cth), rr 2.55, 4.10, 4.31

CASES

Beni v MIBP [2018] FCAFC 228

Patel v Minister for Immigration and Citizenship [2012] FCA 145

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 3 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 2 January 2019. 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.[1]The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 3 October 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. Therefore, the Tribunal finds that the applicant is taken to have been notified of the decision on 3 October 2018.[2] Therefore the prescribed period to apply for review ended on 30 October 2018.

   [1] r.4.31(2) of the Migration Regulations 1994

   [2] s.494C of the Act or r.2.55 of the Regulations.

3. Pursuant to s.412(1)(b) of the Act and r.4.31 of the Migration Regulations 1994 (the Regulations) an application for review of a decision must be made within 28 days after an applicant is notified of the decision in accordance with the statutory requirements. Specifically, the regulations require that an application for review ‘must’ be given to the Tribunal within the prescribed period. As such, no provision is made for any extension of the time limit, even in special or exceptional circumstances.[3] Accordingly, the Tribunal does not have power to extend the prescribed periods under the Act or the Regulations.[4] In Beni v MIBP [2018] FCAFC 228 the Full Federal Court found that the MR Division of the Tribunal does not have the power to extend the time in which an applicant may make a review application to the Tribunal.[5] The Court held that s.29 of the Administrative Appeals Act 1975 (AAT Act) does not apply to the MR Division by virtue of s.24Z of the AAT Act.

   [3]    Patel v Minister for Immigration and Citizenship [2012] FCA 145 @ [7] per Marshall J

   [4] Ibid; reg.410(1)(b)

   [5] This judgment restores the long held position that the prescribed time limits for making a review application to the MR Division cannot be extended. It overturns the judgment of Brown v MHA (No. 2) [2018] FCA 1787.

4. By a letter dated 3 January 2019 the Tribunal advised the applicant that his application was not valid as it had not been lodged within the relevant time limit. The Tribunal invited the applicant to comment in writing by 17 January 2019 as to whether the application made was valid.  

5. By a letter dated 10 January 2019 the applicant confirmed that he had not made the application within the relevant time limit as he had not received a copy of the delegate’s decision due to the fact that it was sent to the person assisting him with his protection visa application and it had not been passed onto the applicant. However, due to the fact that the application was received by the Tribunal after the relevant time limit, the Tribunal is not able to consider the applicants circumstances as it does not have jurisdiction in the matter.

6. Therefore the Tribunal finds that the application for review was not received until 2 January 2019 and as such the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Jason Pennell
   Member