2014561 (Refugee)

[2020] AATA 5611

2014561 (Refugee) [2020] AATA 5611 (16 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2014561

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Hugh Sanderson

DATE:16 December 2020

PLACE OF DECISION:  Sydney

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

Statement made on 16 December 2020 at 2:39pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – review application out of time – second review application for the same decision – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 494C
Migration Regulations 1994, 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 dependants.

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 21 March 2017 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 28 September 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 24 July 2019 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The Tribunal wrote to the applicant on 5 October 2020 stating as follows:

   It appears that your application is not a valid application as it was not lodged within the relevant time limit. Pursuant to r.4.31(2) of the Migration Regulations 1994, the period in which an application for review of a Part 7-reviewable decision must be given to the Tribunal is 28 days, 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].

   The primary decision was emailed to you 24 July 2019 meaning that 24 July 2019 was the date on which you are taken to have been notified. In accordance with DZAFH, the last day for lodging the application for review was 20 August 2019.  As the application was not received until 28 September 2020, it appears to be out of time. However, this is a matter which must be determined by a Member…

   Please note that an application for review of the same delegate’s decision was previously made to the Tribunal on 24 July 2019 and is currently waiting to be allocated to a Member.

5. The applicant provided a confused response on 18 October 2020, claiming the delay was due to the expiry of his MyVevo account and that there was a real risk if he returned to Malaysia. He apologised for the late appeal and asked for an extension of time for his application. He did not mention the fact that he has the current application before the Tribunal seeking a review of the decision of the Department to refuse his Protection visa application.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 24 July 2019: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 20 August 2019.

7. As the application for review was not received by the Tribunal until 28 September 2020 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

8. As was stated by the Tribunal in the letter to the applicant, the applicant has a current valid review application before the Tribunal (case number 1920307). That application is yet to be allocated to a Member. When it is the Member will take appropriate action to advise the applicant and list the matter for hearing. The Tribunal will then make a decision determining whether the Department’s decision was correct in refusing the application or whether it the applicant’s application must be reconsidered.

9. As far as this second review application is concerned, however, the Tribunal does not have jurisdiction.

   DECISION

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

    Hugh Sanderson
    Member