2017914 (Refugee)

[2021] AATA 3667

2017914 (Refugee) [2021] AATA 3667 (13 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2017914

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:David McCulloch

DATE:13 August 2021

PLACE OF DECISION:  Sydney

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

Statement made on 13 August 2021 at 1:31pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – application for review made more than 28 days after notification of visa refusal – no response to tribunal’s communication – no jurisdiction

LEGISLATION
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. This is an application for review of a decision of a delegate of the Minister for Immigration on 14 October 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 14 December 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 14 October 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 Tribunal wrote to the applicant on 18 December 2020 noting that based on the notification having been emailed to the applicant on 14 October 2020 that meant that 14 October 2020 was the date on which the applicant was taken to have been notified of the decision. On that basis, the last day for lodging the application for review was 10 November 2020. As the application was not received until 14 December 2020 it appeared to be out of time. The applicant was given the opportunity to respond to this view of the Tribunal. No response was received.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 14 October 2020: s.494C of the Act. Therefore the prescribed period to apply for review ended on 10 November 2020.

6. As the application for review was not received by the Tribunal until 14 December 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.

   David McCulloch
   Member