2111796 (Refugee)

[2021] AATA 4386

2111796 (Refugee) [2021] AATA 4386 (12 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2111796

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Phoebe Dunn

DATE:12 October 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 12 October 2021 at 12:26pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – review application out of time – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth), r 4.31

CASES

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 Immigration on 20 April 2021 to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 5 September 2021. 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.

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 20 April 2021 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. By letter dated 13 September 2021, the applicant was invited to comment in writing by 27 September 2021 on the Tribunal’s preliminary view that the application was not a valid application because it had not been lodged within the relevant time limit. In its letter, the Tribunal noted that the applicant had been notified of the decision on 20 April 2021 and that in accordance with the decision in DZAFH v Minister for Immigration [2017] FCCA 387, the prescribed period in r 4.31 commences on and includes the day the applicant is taken to have been notified of the decision, meaning that 17 May 2021 was the last date for lodging the application. The Tribunal noted that as the application was not received until 5 September 2021, it appeared to have been lodged out of time, but that this was a matter for a Member to determine.

5. The applicant did not respond to the Tribunal’s letter and no further submissions or correspondence has been received from the applicant.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 20 April 2021 by virtue of s 494C of the Act. Therefore, the prescribed period to apply for review ended on 17 May 2021.

7. As the application for review was not received by the Tribunal until 5 September 2021 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.

   Phoebe Dunn
   Member