2009673 (Refugee)

[2020] AATA 4203

2009673 (Refugee) [2020] AATA 4203 (1 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2009673

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Meena Sripathy

DATE:1 September 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 01 September 2020 at 1:48pm

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

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 12 May 2020 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 10 June 2020. 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 12 May 2020 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.[1]

   [1] BMY18 v MHA [2019] FCAFC 189 in which the Full Federal Court considered the validity of a number of types of notification letters in light of the problems identified in DFQ17 v MIBP [2019] FCAFC 64

4. On 7 August 2020 the Tribunal wrote to the applicant to invite comments of the view that the application for review may not be valid because it was not lodged within the relevant time limit. The applicant was advised that the period in which an application for review of a Part 7-reviewable decision must be given to the Tribunal is 28 days (under r.4.31(2) of the Migration Regulations), commencing on the day the applicant is notified of the decision. 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]. As the primary decision was emailed on 12 May 2020, this was the date on which the applicant is taken to have been notified and the last day for lodging the application for review was 9 June 2020. To date no response to the invitation to comment has been received by the Tribunal.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 12 May 2020: s.494C of the Act. As the last day of the prescribed period fell on a public holiday, the applicant had until the end of the next day that was not a Saturday, a Sunday or a holiday to lodge his or her application, i.e. until 9 June 2020: s.36(2) of the Acts Interpretation Act 1901. 

6. As the application for review was not received by the Tribunal until 10 June 2020 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.

   Meena Sripathy
   Member