2013377 (Refugee)

[2020] AATA 5158

2013377 (Refugee) [2020] AATA 5158 (18 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2013377

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Russell Matheson

DATE:18 November 2020

PLACE OF DECISION:  Sydney

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

Statement made on 18 November 2020 at 11:51am

CATCHWORDS
REFUGEE – protection visa – Malaysia – application for review made out of time – No jurisdiction

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

CASES
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 13 March 2018 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 29 August 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 13 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. The applicant was sent a natural justice letter on 1 September 2020 and invited to respond in writing by 15 September 2020. The applicant responded on 1 September 2020 stating that he had overlooked the email sent to him on 13 June 2020. He further stated that he first noticed the email sent to him on 29 August 2020. He also said that he was sorry for exceeding the time limitations and wanted to continue with his application for review.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 13 June 2020 in accordance with s.494C of the Act. Therefore, the prescribed period to apply for review ended on 10 July 2020.

6. As the application for review was not received by the Tribunal until 29 August 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.

   Russell Matheson
   Member