2214378 (Refugee)

[2023] AATA 501

2214378 (Refugee) [2023] AATA 501 (1 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2214378

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Justine Clarke

DATE:1 February 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 01 February 2023 at 2:01pm

CATCHWORDS
REFUGEE – Protection Visa – Malaysia –applicant was notified of the decision in accordance with the statutory requirements – application lodged out of time – no jurisdiction

LEGISLATION
Migration Act 1958, ss 5, 65, 494C
Migration Regulations 1994, r 4.31

CASES

SZRHA v Minister for Immigration [2013] FMCA 131

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. On 28 September 2022, the applicant lodged with the Tribunal an application for review of a decision of a delegate of the Minister for Home Affairs made on 31 August 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

3. 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).

4. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 31 August 2022 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. On 5 October 2022, the Tribunal sent a letter to the applicant, by way of email, inviting him to comment on the validity of the review. The letter requested any comments to be provided in writing by 19 October 2022.

6. On 7 November 2022, the applicant submitted his written comments. He relevantly stated:

   I lodged protection visa merit review at 28 September 2022, please see the attached file. I hope you can accept my merit review application, because my visa agent was left Australia, did not told me about my protection visa refusal issue so cause that I lodged merit review at last minute.

7. The Tribunal has considered the submission.

8. The Tribunal finds that the applicant is taken to have been notified of the decision on 31 August 2022: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 27 September 2022.

9. Once an applicant has been validly notified of the primary decision, the application for review must be lodged with the Tribunal within the relevant prescribed period. If an application is received outside the time period, the Tribunal has no jurisdiction. This is the case even where the applicant is not at fault in making a late application. In SZRHA v Minister for Immigration [2013] FMCA 131, Cameron FM stated, at [25], that ‘[t]he terms of the Act are strict and clear and neither the Tribunal nor the Court have power to allow extra time for the lodgement of a review application to the Tribunal. This is so regardless of the reasons for the delay’ or whether it results in ‘a harsh outcome’.

10. As the application for review was not received by the Tribunal until 28 September 2022, the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

    DECISION

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

    Justine Clarke
    Member