1901085 (Refugee)

[2019] AATA 1760

1901085 (Refugee) [2019] AATA 1760 (25 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1901085

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Jennifer Cripps Watts

DATE:25 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 25 January 2019 at 3:08pm

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

LEGISLATION
Migration Act 1958, ss 65, 494C

Migration Regulations 1994, r 4.31

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 (the delegate) on 20 June 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 January 2019.  The applicant provided a copy of the delegate’s decision.  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 20 June 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. In the notification of the decision to refuse the applicant’s visa, it is clearly stated that he has 28 days to lodge a review application.  The date by which the review application needed to be lodged to be within the prescribed timeframe was 22 July 2018.  In this case, the online review application was logged into the Tribunal system at 19:23:51 AEDT on 16 January 2019.

5. On 18 January 2019, the Tribunal sent the applicant a natural justice letter informing him that it appeared he had not made a valid review application relating to the refusal of his protection visa because he had lodged the review application outside the prescribe period.  On the basis of this information, he was invited to comment on the validity of his application in writing by 1 February 2019. 

6. On 24 January 2019, the Tribunal received an email response to the natural justice letter from the applicant.  The applicant says he did not receive any notification from Immigration and that he could not apply to the Tribunal due to ‘the SOI’ to get all his documents.  It appears he suggests that it was when he got his documents back that he then lodged his review application.  He acknowledges that the review application was beyond the 28 day time period.  The applicant says that he cannot go back to his country because he would be at risk and asks the Tribunal to review his case.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 20 June 2018:  s.494C of the Act.  Therefore the prescribed period to apply for review ended on 17 July 2018.  The Tribunal has no discretion to vary the prescribed period to apply for review.

8. As the application for review was not received by the Tribunal until 16 January 2019, 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.

   Jennifer Cripps Watts
   Member