2413908 (Refugee)

[2024] AATA 3448

2413908 (Refugee) [2024] AATA 3448 (5 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2413908

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Paul Windsor

DATE:5 August 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 05 August 2024 at 3:17 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 19 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 28 May 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 19 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. On 28 May 2024, the Tribunal wrote to the applicant advising her that it appears her  application for review is not a valid application as it was not lodged within the relevant time limit.

5. The applicant responded on 30 May 2024 commenting as follows:

   ‘For your information, I was not correctly notified of the decision for my protection visa application before. I only aware of the decision once I discovered that my visa status is overstay without visa. Afterward I have check the status for my protection visa application, then only realised that department of home affairs tried to notify me on 19/05/2020 where the time I already lost the correspondence email, therefore I was not correctly notified of the decision. Now I have submit my review application as my friend advised me the procedure so that I could apply for bridging visa to stay lawfully in Australia. Could Administrative Appeals Tribunal please consider the validity of my review application and proceed with next process?’

6. As noted above, the Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. The refusal notification was sent to her on 19 May 2020 to the email address she provided for this purpose in her protection visa application (email deleted). She made a valid review application from this email address on 20 May 2020. On 8 and 14 August 2020, however, she emailed the Tribunal advising that she wished to withdraw the review application. She sent a further email from the same email address on 14 August 2020 seeking advice on the status of her withdrawal application. The Tribunal wrote to her on 30 October 2020 advising her that her request to withdraw her application has been accepted.

7. The applicant made a second application for review on 28 May 2024.

8. The Tribunal finds that the applicant is taken to have been notified of the decision on 19 May 2020: s 494C of the Act. Therefore the prescribed period to apply for review ended on 15 June 2020.

9. As the second application for review was not received by the Tribunal until 28 May 2024, the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

    Paul Windsor
    Member