2011304 (Refugee)

[2020] AATA 4632

2011304 (Refugee) [2020] AATA 4632 (23 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2011304

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Helena Claringbold

DATE:23 September 2020

PLACE OF DECISION:  Sydney

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

Statement made on 23 September 2020 at 12:09pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – applicant was notified of the decision in accordance with the statutory requirements – Application lodged out of time – application was not valid – no jurisdiction

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 4.31

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 9 June 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 8 July 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 9 June 2020 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 14 July 2020, the Tribunal wrote to the applicant and invited him to comment on the validity of the application in writing by 28 July 2020.  He was advised of the following. It appears that his application is not a valid application as it was not lodged within the relevant time limit. The primary decision was emailed to him on 9 June 2020. This means that 9 June 2020 is the date on which he is taken to have been notified. Therefore, the last day for lodging the application for review was 6 July 2020. As the application was not received until 8 July 2020.

5. On 20 July 2020, the applicant wrote to the Tribunal and stated the following. The reason for the delay in lodging the application in that he has been unwell for some months and on medication. He was not fit to attend to urgent matters and the delay in lodging the application was not inordinate. It was unintentional, unavoidable and an honest mistake.

6. The Tribunal considered the evidence individually and completely. The Tribunal finds that the applicant is taken to have been notified of the decision on 9 June 2020. Therefore, the prescribed period to apply for review ended on 6 July 2020.

7. As the application for review was not received by the Tribunal until 8 July 2020 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Helena Claringbold
   Member