2308577 (Refugee)

[2023] AATA 4083

2308577 (Refugee) [2023] AATA 4083 (5 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2308577

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Meena Sripathy

DATE:5 September 2023

PLACE OF DECISION:  Sydney

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

Statement made on 05 September 2023 at 12:54pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – application for review is not a valid application – applicant was notified of the decision in accordance with the statutory requirements – application lodged out of time – No jurisdiction

LEGISLATION
Migration Act 1958, ss 36, 65, 494C
Migration Regulations 1994, r 4.31

CASES

BMY18 v MHA [2019] FCAFC 189

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 Immigration and Border Protection on 26 October 2017 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 16 June 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: reg 4.31(2) of the Migration Regulations 1994 (Cth) (the Regulations).

3. The material before the Tribunal indicates that the applicant was initially notified of the decision by letter dated 26 October 2017 and dispatched by email. This notification appeared to be affected by the error identified in BMY18 v MHA [2019] FCAFC 189 in that the information as to when the notification is taken to have been received was located away from the section on Review rights such that the letter was confusing and misleading. Following this judgment the Department identified this notification as defective and renotified the decision to the applicant on 13 June 2020. The re-notification was sent to the same email address provided by the applicant in his protection visa application. There is no information before the Tribunal to indicate that the applicant advised the Department of a change to his email address prior to this time. The Tribunal is satisfied that the applicant was notified of the decision on 13 June 2020 in accordance with the statutory requirements.

4. On 31 July 2023 the Tribunal wrote to the applicant to invite comment on the validity of the application for review.  The invitation explained that the application may not be a valid one because it was not lodged within the relevant time limit.  The Tribunal notes that the invitation incorrectly referred to the original decision notification sent to him by email on 26 October 2017 (which was affected by the error identified in BMY18) and not the (valid) re-notification sent on 13 June 2020.  On the basis of the re-notified decision, the last day for lodging the application for review was 10 July 2020.  The invitation stated that as the application was not received until 16 June 2023, it appears to be out of time. The Tribunal observes that this would be the same conclusion notwithstanding the erroneous reference to the original defective notification in the letter.

5. The applicant responded to the invitation by email on 3 August 2023 stating he believes his application is valid because he did not receive the said notification in time, it was out of his control and he had made the appeal as soon as he was notified. 

6. The Tribunal has considered this response and the information before it, including the re- notified decision dated 13 June 2020, however it has no power to extend the period of time in the circumstances of a valid notification.

7. On the evidence before it, the Tribunal finds that the applicant is taken to have been validly notified of the decision on 13 June 2020: s 494C of the Act. Therefore the prescribed period to apply for review ended on 10 July 2020.

8. As the application for review was not received by the Tribunal until 16 June 2023 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.

   Meena Sripathy
   Member