1926454 (Refugee)

[2020] AATA 1215

1926454 (Refugee) [2020] AATA 1215 (25 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1926454

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Mireya Hyland

DATE:25 February 2020

PLACE OF DECISION:  Sydney

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

Statement made on 25 February 2020 at 4:04pm

CATCHWORDS

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

LEGISLATION

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

CASES

DZAFH v Minister for Immigration [2017] FCCA 387

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 made on 6 August 2019 to refuse to grant a protection visa under s.65 of the Migration Act 1958. The review application was lodged with the Tribunal on 19 September 2019.

2. As the applicant, [named], was not in immigration detention on the day he was notified of the decision, an application for review of the decision had to be made within 28 days: r.4.31(2) of the Migration Regulations 1994. 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].

3. The material before the Tribunal indicates that [the applicant] was notified of the decision by letter dated 6 August 2019 which was dispatched by email. The Tribunal is satisfied that [the applicant] was notified of the decision in accordance with the statutory requirements.

4. On 23 December 2019, the Tribunal wrote to [the applicant] informing him that it appeared that his review application is not a valid application because it was not lodged within the relevant time limit. It invited him to comment on the validity of his application by 6 January 2020. At the date of this decision the Tribunal has not had any response to its letter.

5. The Tribunal finds that [the applicant] is taken to have been notified of the decision on 6 August 2019: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 2 September 2019.

6. As the application for review was not received by the Tribunal until 19 September 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.

   Mireya Hyland
   Member