2109918 (Refugee) - [2021] AATA 5543

2109918 (Refugee) [2021] AATA 5543 (16 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2109918
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Nathan Goetz
DATE:16 September 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 16 September 2021 at 10:29am
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
CASES
Beni v Minister for Immigration and Border Protection [2018] FCAFC 228
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

This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act).
BACKGROUND
The applicant identifies as [age] year old male citizen of Malaysia who last arrived in Australia on [date] January 2020 holding a visitor visa which ceased [in] April 2020.
On 17 April 2020 the applicant applied for a protection visa. On 23 April 2020 the applicant was granted a bridging visa. By letter dated 1 June 2021 the applicant was notified of the decision made on 1 June 2021 to refuse to grant the applicant the protection visa. On 6 July 2021 the bridging visa ceased.
On 4 August 2021 the applicant applied to the Tribunal for review of the decision to refuse to grant the protection visa. The same day the Tribunal wrote to the applicant and raised with him the Tribunal’s view that it did not have jurisdiction to review the decision to refuse to grant the protection visa because the review application had not been lodged within the prescribed timeframe.
On 18 August 2021 the applicant responded to the Tribunal letter. The response was as followed:
I am applying for a review for the refusal of my Protection Visa application. I was late in applying for a review because since March 2021 , I've been working a farm job in [Western] Australia.
I have not received any email because it is hard to get mobile signals and internet coverage in that area. When I'm back [to] Perth City in early August, I just realized that I got an email from Home Affair about my visa refusal but unfortunately did not meet the requirements time limit.
I sincerely hope that my application for a review will be accepted.
FINDINGS AND REASONS
For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
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.
The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 1 June 2021 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. The applicant did not dispute that he was notified of the decision on 1 June 2021.
The Tribunal finds that the applicant is taken to have been notified of the decision on 1 June 2021: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 28 June 2021.
It is regrettable that the applicant did not have access to his email because he was working in a place where he had limited internet reception. However, that does not mean that the applicant was not notified in accordance with the statutory requirements.
There is no power for the Migration and Refugee Division of the Tribunal to extend time to make an invalid review application valid: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 (14 December 2018).
As the application for review was not received by the Tribunal until 4 August 2021 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
DECISION
The Tribunal does not have jurisdiction in this matter.
Nathan Goetz
Member

Details

AGLC: 2109918 (Refugee) [2021] AATA 5543
Case: [2021] AATA 5543
Decision Date: 16 September 2021

CaseChat Overview and Summary

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration to refuse to grant a protection visa to a Malaysian citizen. The applicant, who had arrived in Australia on a visitor visa that subsequently ceased, applied for a protection visa and was granted a bridging visa. He was notified of the refusal decision on 1 June 2021. The applicant lodged his application for review with the Tribunal on 4 August 2021, after his bridging visa had ceased.

The primary legal issue before the Tribunal was whether it had jurisdiction to review the refusal decision, given that the application for review was lodged outside the prescribed timeframe. Specifically, the Tribunal had to determine if the applicant had been notified of the refusal decision in accordance with statutory requirements and, if so, whether the application for review was made within the time limit stipulated by the Migration Regulations 1994.

The Tribunal reasoned that, as the applicant was not in immigration detention when notified of the decision, he was required to lodge his review application within 28 days of being notified, pursuant to r.4.31(2) of the Migration Regulations 1994. The Tribunal was satisfied that the applicant was notified of the refusal decision by letter dated 1 June 2021, dispatched by email, and that this constituted notification in accordance with statutory requirements under s.494C of the Migration Act 1958. Consequently, the prescribed period for lodging the review application expired on 28 June 2021. The Tribunal noted that while the applicant's circumstances, such as limited internet access due to farm work, were regrettable, they did not alter the fact that he was notified according to the law. The Tribunal affirmed that it lacked the power to extend time for an invalid review application, citing *Beni v Minister for Immigration and Border Protection* [2018] FCAFC 228.

As the application for review was received by the Tribunal on 4 August 2021, which was beyond the statutory deadline, the Tribunal concluded that it did not have jurisdiction to hear the matter.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act). BACKGROUND The applicant identifies as [age] year old male citizen of Malaysia who last arrived in Australia on [date] January 2020 holding a visitor visa which ceased [in] April 2020. On 17 April 2020 the applicant applied for a protection visa. On 23 April 2020 the applicant was granted a bridging visa. By letter dated 1 June 2021 the applicant was notified of the decision made on 1 June 2021 to refuse to grant the applicant the protection visa. On 6 July 2021 the bridging visa ceased. On 4 August 2021 the applicant applied to the Tribunal for review of the decision to refuse to grant the protection visa. The same day the Tribunal wrote to the applicant and raised with him the Tribunal’s view that it did not have jurisdiction to review the decision to refuse to grant the protection visa because the review application had not been lodged within the prescribed timeframe. On 18 August 2021 the applicant responded to the Tribunal letter. The response was as followed:I am applying for a review for the refusal of my Protection Visa application. I was late in applying for a review because since March 2021 , I've been working a farm job in [Western] Australia.I have not received any email because it is hard to get mobile signals and internet coverage in that area. When I'm back [to] Perth City in early August, I just realized that I got an email from Home Affair about my visa refusal but unfortunately did not meet the requirements time limit.I sincerely hope that my application for a review will be accepted.FINDINGS AND REASONS For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision. 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. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 1 June 2021 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. The applicant did not dispute that he was notified of the decision on 1 June 2021. The Tribunal finds that the applicant is taken to have been notified of the decision on 1 June 2021: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 28 June 2021. It is regrettable that the applicant did not have access to his email because he was working in a place where he had limited internet reception. However, that does not mean that the applicant was not notified in accordance with the statutory requirements. There is no power for the Migration and Refugee Division of the Tribunal to extend time to make an invalid review application valid: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 (14 December 2018).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As the application for review was not received by the Tribunal until 4 August 2021 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.DECISION The Tribunal does not have jurisdiction in this matter.Nathan GoetzMember

Ratio Decidendi

Legal Principle Established

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