2217177 (Refugee)

[2023] AATA 638

2217177 (Refugee) [2023] AATA 638 (7 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2217177

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Tamara Hamilton-Noy

DATE:7 March 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 07 March 2023 at 8:03am

CATCHWORDS

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

LEGISLATION

Acts Interpretation Act 1901, s 36
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 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 18 May 2020 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 23 November 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 18 May 2020 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The Tribunal finds that the applicant is taken to have been notified of the decision on 18 May 2020: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 14 June 2020. 

5. As the last day of the prescribed period fell on a Sunday, the applicant had until the end of the next day that was not a Saturday, a Sunday or a holiday to lodge his or her application, i.e. until 15 June 2020: s 36(2) of the Acts Interpretation Act 1901 (Cth).

6. On 28 November 2022, the Tribunal wrote to the applicant stating that it appeared her application was not a valid application as it had not been lodged within the relevant time limit.  The applicant was invited to respond to this information by 12 December 2022.  No response was received from the applicant by 12 December 2022 and no response has been received at the date of this decision. 

7. As the application for review was not received by the Tribunal until 23 November 2022 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.

   Tamara Hamilton-Noy
   Member