2212089 (Refugee)

[2023] AATA 615

2212089 (Refugee) [2023] AATA 615 (4 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2212089

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Brendan Darcy

DATE:4 January 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 04 January 2023 at 3:59pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 494C
Migration Regulations 1994, r 4.31

CASES

DZAFH v Minister for Immigration [2017] FCCA 387

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 21 July 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 18 August 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). In DZAFH v Minister for Immigration [2017] FCCA 387, the Federal Circuit Court held that the prescribed period in r.4.31 commences on, and includes, the day the applicant is taken to have been notified of the decision: at [44] – [46].

3. On 19 August 2022, the Tribunal emailed the applciant to invite comment on the validity of the application for review, and to do so by 2 September 2022. On 5 September 2022, the Tribunal received an emailed response from the applciant which stated, in full:

   Dear Sir,

   With reference to your letter dated 19th August, I am writing this email in respond to my late submission of the application for review.

   I wasn't aware of the visa refusal email from Home Affair until the day when I need to print my Vevo for job application and there was an expiration date on my Vevo. And by the time, I check my email, it was like 2 days before the date of application for review.

   It was my mistake as I very seldom checking on my email because normally I received tons of email from the retailers.

   I really hope AAT will taking a consideration looking into my review application.

   Thank you

   [Applicant’s name]

   Case no.: 2212089

4. It was claimed that by the appoint that she was not aware of being notified by the Department of a refusal decision on his protection visa application because she seldom checks the email account, she nominated to receive correspondence from the Department.

5. It is the responsibility of the applicant to monitor the nominated email in relation to a visa application and to apply to the Tribunal within the prescribed timeframe.

6. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 21 July 2022 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 21 July 2022: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 17 August 2022.

8. As the application for review was not received by the Tribunal until 18 August 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.

   Brendan Darcy
   Member