1917863 (Refugee)

[2020] AATA 4030

1917863 (Refugee) [2020] AATA 4030 (3 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1917863

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Cathrine Burnett-Wake

DATE:3 August 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 03 August 2020 at 3:07pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 494C
Migration Regulations 1994, r 4.31

CASES

BMY18 v Minister for Home Affairs [2019] FCAFC 189
DFQ17 v Minister for Immigration [2019] FCAFC 64
DZAFH v Minister for Immigration [2017] FCCA 387
Singh v Minister for Immigration [2020] FCAFC 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 5 June 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 3 July 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. On 21 October 2019, the Tribunal wrote to the applicant inviting her to comment on the validity of her review application. The letter outlined that it appeared her application was not a valid application as it was not lodged within the relevant time limit. The letter detailed that pursuant to r.4.31(2) of the Migration Regulations 1994, the period in which an application for review of a Part 7-reviewable decision must be given to the Tribunal is 28 days, commencing on the day the applicant is notified of the decision. And relevantly, 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 the decision: at [44] – [46]. The letter outlined that the primary decision was emailed to the applicant on 5 June 2019 meaning that 5 June 2019 was the date on which she was taken to have been notified. Further, in accordance with DZAFH, the last day for lodging the application for review was 2 July 2019. Finally, the letter detailed that as the application was not received until 3 July 2019, it appeared to be out of time.

4. The applicant responded to the Tribunal on 20 October 2019, and outlined in her email:

   I am apologize for the late respond. I was not able to submit my review application as per given date (02.July.2019). I’m having problem with my e-mail as I couldn’t open any e-mail messages for couple days. Thank you and sorry for inconvenience caused.

5. On 18 November 2019, the Tribunal wrote to the applicant informing her that in light of court judgments, including DFQ17 v Minister for Immigration ]2019] FCAFC 64 (18 April 2019) and BMY18 v Minister for Home Affairs ]2019] FCAFC 189 (31 October 2019), which identified problems with the validity of notifications letters issued by the Department of Home Affairs for failing to clearly state the time period within which an application for review must be made and that her case had been reassessed in light of these judgments and that it would appear the Tribunal has jurisdiction to accept the review application.

6. On 31 March 2020, the Tribunal again wrote to the applicant inviting her to comment on the validity of her review application. This time the Tribunal wrote regarding a further court judgment, Singh v Minister for Immigration [2020] FCAFC 31 (28 February 2020). The letter outlined that the notification letter issued by the Department of Home Affairs had been re-assessed following this judgment. And following this reassessment that it would appear she was validly notified under the Migration Act 1958, with the consequence that her application for review was not valid as it was lodged out of time.

7. On 9 April 2020, the application responded to the Tribunal’s second invitation to comment on validity of her review application. In response, the applicant put forward claims relating to her protection application, and why she believed she could not return to Malaysia. The applicant’s response did not address the question of validity as raised in the Tribunal’s letter of 31 March 2020.

8. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 5 June 2019 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

9. The Tribunal finds that the applicant is taken to have been notified of the decision on 5 June 2019: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 2 July 2019.

10. As the application for review was not received by the Tribunal until 3 July 2019 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

    DECISION

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

    Cathrine Burnett-Wake
    Member