2113176 (Refugee)

[2021] AATA 5008

2113176 (Refugee) [2021] AATA 5008 (26 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2113176

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Linda Holub

DATE:26 October 2021

PLACE OF DECISION:  Sydney

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

Statement made on 26 October 2021 at 10:46am

CATCHWORDS
REFUGEE – Protection Visa – Malaysia – application for review is not a valid application – applicant was notified of the decision in accordance with the statutory requirements– application lodged out of time –no jurisdiction to review a decision twice – no jurisdiction

LEGISLATION
Acts Interpretation Act 1901, s 36
Migration Act 1958, s 65
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 Home Affairs on 23 April 2019 to refuse to grant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The review application was lodged with the Tribunal on 28 September 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: reg 4.31(2) of the Migration Regulations 1994 (Cth) (the Regulations).

3.    The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 23 April 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 30 March 2020. Therefore the prescribed period to apply for review ended on 26 April 2020.

5. As the last day of the prescribed period fell on a Sunday, the applicant had until the end of the next day that was not a Saturday, a Sunday or a holiday to lodge his or her application, i.e. until 27 April 2020: s 36(2) of the Acts Interpretation Act 1901 (Cth)

6. The Tribunal wrote to the applicant on 30 September 202 explaining that it appears that her application is not a valid application as it was not lodged within the relevant time limit. 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. The letter also outlined the relevant dates: the primary decision was emailed to her on 23 April 2019 meaning that 23 April 2019 was the date on which you are taken to have been notified and that the last day for lodging the application for review was 20 May 2019. As the application was not received until 28 September 2021, it appears to be out of time.

7.    The letter also explained that it appears that the application is not a valid application as an application for review of the same delegate’s decision was previously made to the Tribunal. The case number for that first application is 1929882. The Tribunal made a decision on that application on 22 April 2020 and found that her application was not a valid application and that it did not have jurisdiction to conduct a review.

1. The applicant was provided until 14 October 2021 to comment on the validity of her application. She responded by email on 15 October 2021. She wrote that she was late in submitting the review application because she did not know how to apply for a review of the refusal of my Protection Visa application. She stated that she did not have the knowledge until a friend helped her.

9.    The Tribunal notes that the applicant’s response was out of time. The Tribunal also notes her explanation that she did not know how to apply for a review of her Protection visa refusal. However, the Tribunal does not accept this explanation given she previously lodged a review application for the same refusal decision on 21 October 2019.

1. As the application for review was not received by the Tribunal until 28 September 2021 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

DECISION

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

Linda Holub
Member