2010371 (Refugee)

[2020] AATA 3767

2010371 (Refugee) [2020] AATA 3767 (4 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2010371

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Nathan Goetz

DATE:4 September 2020

PLACE OF DECISION:  Sydney

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

Statement made on 04 September 2020 at 10:37am

CATCHWORDS
REFUGEE – protection visa – Malaysia – application made more than 28 days after delegate’s decision – no response to tribunal’s invitation to comment on validity of application – no power for tribunal to extend time – no jurisdiction

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

CASE
Beni v Minister for Immigration and Border Protection [2018] FCAFC 228

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 to refuse to grant protection visas under s.65 of the Migration Act 1958 (the Act).

2. The delegate refused to grant the protection visas on 19 May 2020.

3. As the applicants were 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.

4. The review application was lodged with the Tribunal on 22 June 2020.

5. On 24 June 2020 the Tribunal wrote to the applicants and raised its concern that it had no jurisdiction to review the refusal decisions because the review application had not been lodged within the prescribed timeframe. The letter invited the applicants to comment on the validity of the review application in writing by 8 July 2020. The Tribunal received no response.

6. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

7. The material before the Tribunal indicates that the applicants were notified of the decision by letter dated 19 May 2020 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. The Tribunal finds that the applicants are taken to have been notified of the decisions on 19 May 2020: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 15 June 2020.

8. There is no power for the Migration and Refugee Division of the Tribunal to extend time to make a review application valid that would otherwise be invalid: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 (14 December 2018)

9. As the application for review was not received by the Tribunal until 22 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

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

    Nathan Goetz
    Member