2307578 (Refugee)

[2023] AATA 3358

2307578 (Refugee) [2023] AATA 3358 (10 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2307578

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:David Crawshay

DATE:10 August 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 10 August 2023 at 10:32am

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

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 31 July 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 30 May 2023. 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: r.4.31(2) of the Migration Regulations 1994 (Cth).

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 31 July 2020 and dispatched by email. The email address to which the notification letter and decision record were dispatched was the same one the applicant gave in his application form signed and dated 23 May 2019. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 9 June 2023, an officer of the Tribunal sent a letter to the applicant informing her of its view that her application was not valid as it was not lodged within the relevant period, which is 28 days commencing on the day she was notified of the primary decision. The letter also invited the applicant to make any comments on whether a valid application has been made.

5. As at the date of this decision, no such response has been received.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 31 July 2020: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 27 August 2020. As the application for review was not received by the Tribunal until 30 May 2023 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.

   David Crawshay
   Member