2114766 (Refugee)

[2022] AATA 712

2114766 (Refugee) [2022] AATA 712 (2 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2114766

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Alison Murphy

DATE:2 February 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 02 February 2022 at 10:23am

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

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 Home Affairs on 23 September 2021 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 21 October 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. On 25 October 2021, a Tribunal officer wrote to the applicant advising that the review application may be invalid as it appeared to be lodged out of time. The letter invited the applicant to comment on whether a valid review application had been made. The applicant responded by stating that the review application was lodged late because he lost access to his email after his phone had to be repaired and he couldn’t collect it because of COVID related lockdowns.

4. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 23 September 2021 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 23 September 2021: s 494C of the Act. Therefore the prescribed period to apply for review ended on 20 October 2021.

6. The Tribunal acknowledges the circumstances which caused the review application to be lodged out of time, but the Tribunal has no power to extend the time to lodge a valid application for review.

7. As the application for review was not received by the Tribunal until 21 October 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.

   Alison Murphy
   Member