2012161 (Refugee)

[2020] AATA 4874

2012161 (Refugee) [2020] AATA 4874 (7 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2012161

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Justine Clarke

DATE:7 October 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 07 October 2020 at 3:48pm

CATCHWORDS
REFUGEE – protection Visa – Malaysia – applicant was notified of the decision in accordance with the statutory requirements – application lodged out of time – no jurisdiction

LEGISLATION
Acts Interpretation Act 1901 (Cth), s 36
Migration Act 1958 (Cth), ss 65, 494C,
Migration Regulations 1994 (Cth), 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. On 28 July 2020, the applicant lodged an application with the Tribunal for the review of a decision of a delegate of the Minister for Immigration made on 29 June 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

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

3. 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.

4. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 29 June 2020 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. On 4 August 2020, the Tribunal sent a letter by email to the applicant inviting her to comment on the validity of the application for review. The letter requested any comments to be provided in writing by 18 August 2020. To date, the Tribunal has not received a response.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 29 June 2020: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 26 July 2020.

7. As the last day of the prescribed period fell on a Sunday, 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 27 July 2020: s.36(2) of the Acts Interpretation Act 1901.

8. As the application for review was not received by the Tribunal until 28 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

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

   Justine Clarke
   Member