2218137 (Refugee)

[2023] AATA 642

2218137 (Refugee) [2023] AATA 642 (14 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2218137

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Peter Vlahos

DATE:14 March 2023

PLACE OF DECISION:  Melbourne

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

This Statement was made on 14^th March 2023 at 4.52 PM .

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 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 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 Home Affairs on 30 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 9 December 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 30 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 wrote to the applicant on 23 December 2022   advising the applicant that this application for review had not been lodged within the required time limit. The time limit was 28 days from the date the applicant had been notified of the primary decision. The Tribunal from the information on it file notes, that the primary decision was emailed to the applicant on 30 May 2020, and on that basis that date on which the applicant was taken to have been notified. Therefore, the last date for lodging an application for review was 26 June 2020. However, the application  for review was received by the Tribunal on 9 December 2022.

5. In the Tribunal’s letter to the applicant dated 23 December 2023, the Tribunal invited the applicant to make comment and to do so in writing by 16 January 2023 on whether a valid application had been submitted to the Tribunal.

6. On 6 January 2023 the applicant wrote to the Tribunal explaining that his application was late because he had minimal knowledge and did not have the funds to seek professional advice. While the Tribunal understands the applicant’s circumstances, nevertheless he was seeking to attract to himself the protection of law for his particular claims and thus should have engaged a profession to assist him. Moreover, there was nothing to suggest that that avenue to engage a professional was not open for the applicant.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 30 May 2020: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 26 June 2020.

8. As the application for review was not received by the Tribunal until 9 December 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.

   Peter Vlahos
   Member