1905890 (Refugee)

[2019] AATA 4989

1905890 (Refugee) [2019] AATA 4989 (23 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1905890

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Scott Clarey

DATE:23 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 23 April 2019 at 11:22am

CATCHWORDS
REFUGEE – protection visa – Malaysia – not in immigration detention – application out of time – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), s 65, 494,
Migration Regulations 1994, Schedule 2, r 4.31(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 9 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 12 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 9 October 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 9 October 2018. Therefore the prescribed period to apply for review ended on 5 November 2018.

5. The material before the Tribunal indicates that the application for review was received by the Tribunal on 12 March 2019.

6. On 18 March 2019 the Tribunal wrote to the applicant to inform her that her application appeared to be out of time and invited her to comment on the validity of her application in writing by 1 April 2019. The Tribunal did not receive a response to this letter. The Tribunal notes that it has no power to waive the requirement to have lodged the review application within the prescribed timeframe, nor to extend the prescribed timeframe for doing so.

7. As the prescribed period to apply for review ended on 5 November 2018 and the application for review was not received by the Tribunal until 12 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

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

   Scott Clarey
   Member