2205326 (Refugee)

[2022] AATA 3108

2205326 (Refugee) [2022] AATA 3108 (4 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2205326

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Mark Bishop

DATE:4 July 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 04 July 2022 at 10:40am

CATCHWORDS

REFUGEE – protection visa – Malaysia – review application out of time – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 66, 494
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 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 Home Affairs on 7 March 2022 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 10 April 2022. 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 7 March 2022 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. RA was notified of the visa refusal on 7 March 2022. As per the Date Calculator, the last day to lodge a valid application was 4 April 2022. However, RA lodged on 10 April 2022.

5. On the visa application form, RA provided consent to the department to notify correspondence electronically to the email address: [specified]. It does not appear that a change of contact details or change of authorised recipient was submitted during the course of the visa application. DHA notified the visa refusal to RA by email to the email address provided on the application form. Therefore, no method error (under s.494B) or content error (under s.66) has been found with the departmental notification.

6. Tribunal sent a natural justice letter on 28 April 2022 and invited RA's comment by 12 May 2022. At time of decision no response was received. 

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 7 March 2022: s 494C of the Act. Therefore the prescribed period to apply for review ended on 3 April 2022.

8. As the application for review was not received by the Tribunal until 10 April 2022 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.

   Mark Bishop
   Member