2106852 (Refugee)

[2021] AATA 2505

2106852 (Refugee) [2021] AATA 2505 (23 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2106852

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Alison Murphy

DATE:23 June 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 23 June 2021 at 3:24pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – review application out of time – applicant’s phone stolen – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 494C
Migration Regulations 1994, 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 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 2 July 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 23 May 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 2 July 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 26 May 2021, a Tribunal officer wrote to the applicant advising that it appeared the review application was not a valid application as it was not lodged within the relevant time limit.  The applicant was invited to comment on whether a valid application had been made. 

5. On 7 June 2021 the applicant wrote to the Tribunal advising that as a result of his phone being stolen, he had not been able to access his email since June 2020 and he did not receive the notification email dated 2 July 2020. He asked the Tribunal to accept his application so that he could reactivate his visa.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 2 July 2020: s.494C of the Act. Therefore the prescribed period to apply for review ended on 29 July 2020. The Tribunal acknowledges the applicant’s explanation as to the circumstances in which the review application was lodged out of time, however the Tribunal has no power to extend the time to lodge a valid application.

7. As the application for review was not received by the Tribunal until 23 May 2021 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Alison Murphy
   Member