2119225 (Refugee)

[2022] AATA 1305

2119225 (Refugee) [2022] AATA 1305 (16 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2119225

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Peter Vlahos

DATE:16 March 2022

PLACE OF DECISION:  Melbourne

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

This Statement was made on 16^th March 2022 at 7.32AM.

CATCHWORDS
REFUGEE – protection visa – Malaysia – application lodged out of time – no jurisdiction

LEGISLATION
Migration Act 1958, s 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 and Border Protection on 23 February 2016 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 15 December 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 Tribunal noted from the file, that its decision was emailed to the applicant on 6 June 2020, and this meant that 6 June 2020 was the date on which the applicant was taken to have been notified. In accord with the decision of the Federal Circuit Court in DZAFH, the last date for lodging the application for review was 3 July 2020. The application was not received by the Tribunal until 15 December 2021 and was out of time.

4. In its email to the applicant dated 4 February 2022, the Tribunal requested the applicant to make submissions concerning the above, no later than 18 February 2022.

5. As at the writing of this decision, the Tribunal has not received any written submissions from the applicant.

6. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 6 June 2020 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 6 June 2020: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 3 July 2020.

8. As the application for review was not received by the Tribunal until 15 December 2021 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Peter Vlahos
   Member