1905395 (Refugee)

[2019] AATA 1284

1905395 (Refugee) [2019] AATA 1284 (1 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1905395

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Russell Matheson

DATE:1 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 01 April 2019 at 4:38pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – notification of decision by email – application made out of time – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth), 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 on 4 February 2019 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 7 March 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: 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 4 February 2019 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 14 March 2019 a natural justice letter was sent to the applicant with an invitation to comment on the validity of the application for review by 28 March 2019. The applicant responded in writing on 14 March 2019. The applicant stated that the notification for her visa refusal went to her spam email. She further stated she did not know the time frames or that she had to re-appeal for her visa between the 4 February 2019 and 3 March 2019. The applicant requested that her visa be reinstated because she wanted to become a permanent resident so that she could work and study in Australia. The Tribunal acknowledges the applicants submission.

5. The Tribunal finds that the applicant is taken to have been notified of the decision in accordance with s.494C on 4 February 2019. Therefore the prescribed period to apply for review ended on 3 March 2019.

6. As the application for review was not received by the Tribunal until 7 March 2019 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.

   Russell Matheson
   Member