2107236 (Refugee)

[2021] AATA 3096

2107236 (Refugee) [2021] AATA 3096 (20 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2107236

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:C. Packer

DATE:20 July 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 20 July 2021 at 5:07pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – application for review made more than 28 days after department’s notification of visa refusal decision – reliance on friend’s assistance – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), s 65
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 29 April 2021 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 2 June 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 29 April 2021 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 sent the applicant a natural justice letter dated 7 June 2021. The applicant responded on 21 June 2021:

   I am as the above detail would like to comment on validity of my visa C invalid. Because i am not good in reading I have forward the email to second party, to my friend to assist me. Because of busy routine work, I didn't heard anything from my friend and feeled something wrong. Then i give a call to my 3rd party person and she immediately resolve for me but the date was in invalid and late. I feeled very stress that my friend told me that it was difficult due to TRIBUNAL not accepted for 28days. What should i do now if nobody alert and assist me regard this. I am not good in reading English and this is hard for me. I trust my friend but she didn't turned up earlier. I hope Tribunal will accepted my failure and hope given one more chances to appeal again without any visa cancellation. For your information i willing to pay the application fee but i will pay by fill up Financial Hardship form.( To pay by Installment).  (sic)

5. However, the prescribed period cannot be waived by the Tribunal. The Tribunal finds that the applicant is taken to have been notified of the decision on 29 April 2021. Therefore the prescribed period to apply for review ended on 26 May 2021. As the application for review was not received by the Tribunal until 2 June 2021 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   C. Packer
   Member