2104119 (Refugee)

[2021] AATA 3010

2104119 (Refugee) [2021] AATA 3010 (29 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2104119

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Nathan Goetz

DATE:29 July 2021

PLACE OF DECISION:  Sydney

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

Statement made on 29 July 2021 at 4:56pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – review application out of time – primary decision renotified – no jurisdiction

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, rr 2.55, 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 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 to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act).

   IDENTITY, MIGRATION HISTORY AND CHRONOLOGY

2. The applicant identifies as [an age]-year-old female citizen of Malaysia who first arrived in Australia [in] February 2016 holding an electronic travel authority visa. The electronic travel authority visa ceased [in] May 2016.

3. On 26 August 2016 the applicant applied for a protection visa. On 31 August 2016 the applicant was granted a bridging visa.

4. On 25 January 2017 the bridging visa granted on 31 August 2016 ceased. On 25 January 2017 the applicant was granted a bridging visa.

5. On 2 February 2017 the delegate refused to grant the protection visa. On 9 March 2017 the bridging visa granted on 25 January 2017 ceased.

6. On 3 May 2017 the applicant applied to the Tribunal for a review of the decision to refuse the protection visa. On 26 May 2017 the Tribunal found it had no jurisdiction to review the decision to refuse the protection visa: AAT case 1709614. The Tribunal found that the applicant had not applied to the Tribunal for review within the prescribed timeframe.

7. On 22 January 2018 the applicant applied for the bridging visa. On 7 February 2018 the delegate refused to grant the bridging visa. The applicant applied to the Tribunal for review of the refusal decision. That review application is listed for a Tribunal hearing on 13 August 2021: AAT case 2017643.

8. On 20 August 2018 the applicant was granted a bridging visa. On 4 September 2018 this bridging visa ceased.

9. On 5 October 2018 the applicant was granted a bridging visa. On 19 October 2018 this bridging visa ceased. The applicant became an unlawful non-citizen.

10. On 6 June 2020 the delegate renotified the applicant of the decision to refuse the protection visa. The delegate did this because the previous notification was defective.

11. On 26 March 2021 the applicant again applied to the Tribunal for review of the decision to refuse the protection visa. It is this review application that is the subject of this Decision Record. In the review application form, the applicant said she was not notified of the decision to refuse her protection visa application. She had moved to Sydney and lost her phone. She wrote that she received the decision on 26 March 2021.

12. On 21 May 2021 the Tribunal wrote to the applicant and raised its concern that it did not have jurisdiction to review the refusal decision because the review application was not lodged within the prescribed timeframe. The letter detailed the applicable regulatory regime concerning the timeframe. The letter invited the applicant to comment on or respond to the validity of the review application by 3 July 2021.

13. The Tribunal received no response to this invitation.

    FINDINGS AND REASONS

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

15. 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.

16. Having looked at the notification letter, the Tribunal is satisfied that it complies with the legislative and regulatory requirements. The notification letter is tolerably clear. The applicant did not submit that the notification letter was defective or that she was somehow unclear about her review rights.

17. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 6 June 2020 and dispatched by email. Her review application form suggests that she did not receive the notification letter until 26 March 2021, but she did not detail how she received the notification letter that day. She refers to moving to Sydney and losing her phone, but that does not account for why she claims not to have received the notification letter by email until 26 March 2021. There is no evidence to suggest that the notification letter of 6 June 2020 failed to send. If the applicant did not look at her email, that does not mean that she was not validly notified of the refusal decision.

18. The fact that the applicant did not respond to the Tribunal’s invitation for her to comment on the validity of the review application suggests to the Tribunal that the applicant was aware that she received the notification letter on 6 June 2020.

19. The Tribunal finds that the applicant is taken to have been notified of the decision on 6 June 2020: r.2.55 of the Regulations. Therefore, the prescribed period to apply for review ended on 3 July 2020.

20. As the application for review was not received by the Tribunal until 26 March 2021 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

    DECISION

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

    Nathan Goetz
    Member