2112122 (Refugee)

[2021] AATA 4517

2112122 (Refugee) [2021] AATA 4517 (11 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2112122

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Jennifer Cripps Watts

DATE:11 October 2021

PLACE OF DECISION:  Sydney

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

Statement made on 11 October 2021 at 5:25pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – application for review made more than 28 days after notification of visa refusal – no response to tribunal’s invitation to comment – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth), r 4.31(2)

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 (The Minister) on 10 September 2019 to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act).  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 email on 10 September 2019. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. 

4. The review application was made on 9 September 2021.  On 16 September 2021, the Tribunal wrote to the applicant inviting her to comment on the validity of her application, in writing by 30 September 2021, because it appeared her application had been lodged out of time.  The applicant was informed that the date on which she was taken to have been notified that her visa was refused was 10 September 2019 and that the last day for lodging a review application was 7 October 2019.  No response was received to the Tribunal’s letter, nor was a request for an extension of time to comment or respond made. 

5. The Tribunal finds that the Minister notified the applicant of the decision to refuse her visa, under s.494C of the Act, on 10 September 2019.  Therefore the prescribed period to apply for review ended on Monday, 7 October 2019.  In the notification letter, at the bottom of the first second page, under the heading ‘Review Rights’ (in bold), this was included:

   ‘The Department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision.  An application for merits review of this decision must be given to the AAT within the period of 28 calendar days, commencing on the day you are taken to have received this letter.

   As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.

   The time mentioned above in which you may apply to the AAT for merits review of this decision is prescribed by law and cannot be extended.’

6. The application for review was not received by the Tribunal until 9 September 2021.  Therefore 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.

   Jennifer Cripps Watts
   Member