2108724 (Refugee)

[2021] AATA 3390

2108724 (Refugee) [2021] AATA 3390 (26 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2108724

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Tamara Hamilton-Noy

DATE:26 July 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 26 July 2021 at 12:57pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – application for review made more than 28 days after notification of refusal of visa – applicant’s confusion between different expiry dates – No jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 65, 494C

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 4 October 2017 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 5 July 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 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 13 July 2021, an officer of the Tribunal wrote to the applicant noting that it appeared his application was not a valid application as it was not lodged within the relevant time limit.  The Tribunal’s correspondence noted that the primary decision was emailed to the applicant on 13 June 2020 and he was taken to have been notified of the decision on 13 June 2020.  The Tribunal’s correspondence noted that the last day for lodging an application for review was 10 July 2020 and that, as the application for review was not received until 5 July 2021, it appeared to be out of time.  The applicant was invited to respond to this information. 

5. On 16 July 2021, the applicant wrote to the Tribunal stating that the Tribunal had dismissed his application and had allowed him to apply for reinstatement.  The applicant stated that the expiry date of his Vevo application was 35 days and notification of refusal application was 28 days and the two expiry dates made him confused.  The applicant apologised that he was late to respond to the appeal, that he feels threatened and that there is a real risk to him of significant harm if he returns to Malaysia.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 13 June 2020: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 10 July 2020.

7. As the application for review was not received by the Tribunal until 5 July 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.

   Tamara Hamilton-Noy
   Member