1932023 (Refugee)

[2020] AATA 1007

1932023 (Refugee) [2020] AATA 1007 (16 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1932023

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Brendan Darcy

DATE:16 April 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 16 April 2020 at 9:05am

CATCHWORDS
REFUGEE – protection visa – Malaysia – application for review lodged out of time – no response to tribunal’s invitation to comment – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth), r 4.31(2)

CASE
DZAFH v Minister for Immigration [2017] FCCA 387

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 11 October 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 11 November 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. 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 11 October 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 12 December 2019, the Tribunal emailed the applicant to invite comment on the validity of this application under review, and to do so by 27 December 2019. Neither the applicant nor anyone on behalf of the applicant responded to this invitation to comment right up to the time of making this decision.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 11 October 2019: s.494C of the Act. Therefore the prescribed period to apply for review ended on 7 November 2019.

6. As the application for review was not received by the Tribunal until 11 November 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.

   Brendan Darcy
   Member