2107427 (Refugee)

[2021] AATA 5635

2107427 (Refugee) [2021] AATA 5635 (27 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2107427

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:De-Anne Kelly

DATE:27 July 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 27 July 2021 at 11:28am

CATCHWORDS

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

LEGISLATION

Acts Interpretation Act 1901, s 36
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 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 13 June 2019 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 7 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 13 June 2019 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 finds that the applicant is taken to have been notified of the decision on 13 June 2019: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 10 July 2019.

5. As the last day of the prescribed period did not fall fell on a Saturday, Sunday or holiday, the applicant had until the end of that day to lodge their application i.e. until 10 July 2019 : s.36(2) of the Acts Interpretation Act 1901.

6. The Tribunal wrote by email to the applicant, at the last email address given on the review application, on 21 June 2021 and advised that the application may not be a valid application as it was not lodged within the relevant time limit. The Tribunal stated that 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.

7. The Tribunal referred to DZAFH v Minister for Immigration [2017] FCCA 387 in which 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]. It advised that the primary decision was emailed to the applicant on 13 June 2019 meaning that 13 June 2019 was the date on which the applicant was taken to have been notified. In accordance with DZAFH, the last day for lodging the application for review was 10 July 2019 As the application was not received until 7 June 2021, it appeared to be out of time.

8. The applicant was invited to comment on the validity of the application in writing by 5 July 2021. They were invited, if they had any questions, to contact the Registry on the direct number; the national enquiry line or by email. The phone numbers and email address were given in the letter.

9. The applicant responded through his migration agent on 5 July 2021 and requested and extension of time which was granted to 19 July 2021. On 19 July 2021, the agent responded on behalf of his client and advised that the previous agent had apparently not given appropriate advice, but the applicant wanted a review and did not want to lose this opportunity. While the Tribunal notes the information given by the applicant it does not go to the fact that there the review application was lodged outside the prescribed time.

10. As the application for review was not received by the Tribunal until 7 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

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

    De-Anne Kelly
    Member