2109142 (Refugee)

[2021] AATA 5330

2109142 (Refugee) [2021] AATA 5330 (26 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2109142

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 10:19am

CATCHWORDS

REFUGEE – protection visa – Malaysia – review application out of time – 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 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 1 June 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 17 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 1 June 2021 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 20 July 2021 an officer of the Tribunal wrote to the applicant, stating that it appeared his application was not a valid application as it was not lodged in the relevant time limit.  The Tribunal’s correspondence noted that the decision had been emailed to the applicant on 1 June 2021 and he was taken to have received the decision on that date, and as a result the last day for lodging an application for review was 28 June 2021.  The applicant was invited to comment on this information.  On 21 July 2021 the applicant wrote to the Tribunal and stated that the application was out of time because he had problems opening his old email because it was registered with a phone number that is no longer active; he registered and signed up with a new email and only realised his visa was refused when he logged in to the ‘VEVO’ app.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 1 June 2021: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 28 June 2021.

6. As the application for review was not received by the Tribunal until 17 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

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

   Tamara Hamilton-Noy
   Member