2100618 (Refugee)

[2021] AATA 5660

2100618 (Refugee) [2021] AATA 5660 (24 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2100618

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Cathrine Burnett-Wake

DATE:24 August 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 24 August 2021 at 11:08am

CATCHWORDS
REFUGEE – protection visa – Malaysia – review application out of time – 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 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 17 December 2020 to refuse to grant protection visas under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 20 January 2021. 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 17 December 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 20 January 2021, the Tribunal invited the applicants to comment on the validity of the application for review. The letter outlined:

   a.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].

   b.The primary decision was emailed to you on 17 December 2020 meaning that 17 December 2020 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 13 January 2021. As the application was not received until 20 January 2021, it appears to be out of time.

5. On 3 February 2021, the applicant completed an online form for an ‘application for extension of time for making an application for review of decision.’ This form, however, does not apply to review applications made pursuant to Part 5 or 7 of the Act in relation to matters heard before the Migration and Refugee Division.

6. There is no mechanism within the Act or regulations to allow extension of times to be granted in relation to lodging review applications made pursuant to Part 5 or 7 of the Act.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 17 December 2020: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 13 January 2021.

8. As the application for review was not received by the Tribunal until 20 January 2021 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.

   Cathrine Burnett-Wake
   Member