2403878 (Refugee)

[2024] AATA 1767

2403878 (Refugee) [2024] AATA 1767 (15 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2403878

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:De-Anne Kelly

DATE:15 April 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 15 April 2024 at 4:13pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – application for review made more than 28 days after notification of visa refusal decision – no response to invitation to comment – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 4.31(2)

CASE
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 29 November 2023 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 2 March 2024. 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 29 November 2023 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 29 November 2023: [s 494C of the Act]. In DZAFH v Minister for Immigration [2017] FCCA 387, the Federal Circuit Court held that the prescribed period in r.4.31 commences on, and includes, the day the applicant is taken to have been notified of the decision: at [44] – [46]. Therefore, the prescribed period to apply for review ended on 26 December 2023.

5. On 8 March 2024 the Tribunal wrote to the applicant at the email address provided on the review application advising that the since the application was not lodged within the prescribed period of time the application may not be a valid application and inviting comment by 22 March 2024.

6. There was no response to the invitation to respond and no request for an adjournment or extension of time. It is reasonable to proceed to a decision on this matter.

7. As the application for review was not received by the Tribunal until 2 March 2024 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.

   De-Anne Kelly
   Member