2219218 (Refugee)

[2023] AATA 1704

2219218 (Refugee) [2023] AATA 1704 (28 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2219218

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Gabrielle Cullen

DATE:28 March 2023

PLACE OF DECISION:  Sydney

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

Statement made on 28 March 2023 at 12:50pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, s 65
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 18 November 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 29 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 18 November 2022 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 a natural justice letter to the applicant on 9 January 2023, conveying its preliminary view that the application for review appeared to be invalid because it was not lodged within the relevant time limit. The Tribunal indicated that the primary decision was emailed to the applicant on 18 November 2022 and in accordance with DZAFH v Minister for Immigration (2017) FCCA 387 the last day for lodging the review was 15 December 2022. The letter noted the application for review was not received until 29 December 2022 and it appeared to be out of time.

5. The Tribunal invited the applicant to submit any comments by 23 January 2023 and on 10 January 2023 he provided the following response

   It appears that my application is not a valid application as it was not lodged within the relevant time limit. The reason it was happened because I got problem to open my email as I lost my phone and once I bought a new phone I was forgot my password for my email. Once I figured it out my password for that email, it's already been late for me to lodge my application for review with the Tribunal.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 18 November 2022. Therefore, the prescribed period to apply for review ended on 15 December 2022. The Tribunal has considered the applicant’s repone, however, as the application for review was not received by the Tribunal until 29 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

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

   Gabrielle Cullen
   Member