1837630 (Refugee) [2019] AATA 2488 (28 February 2019)

Last Updated: 13 August 2019

1837630 (Refugee) [2019] AATA 2488 (28 February 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1837630

COUNTRY OF REFERENCE: Malaysia

MEMBER: Nathan Goetz

DATE: 28 February 2019

PLACE OF DECISION: Sydney

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

Statement made on 28 February 2019 at 1:51pm

CATCHWORDS

REFUGEE – Protection visa – Malaysia – review application 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. On 13 June 2018 the applicant [applied] for a XA-866 protection visa. The applicant is a Malaysian citizen who arrived in Australia [in] March 2018 on an Electronic Travel Authority visa.
2. On 16 November 2018 a delegate of the Minister for Immigration refused to grant the visa under s.65 of the Migration Act 1958 (the Act).
3. 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.
4. On 21 December 2018 the applicant lodged a review application of the refusal decision with the Tribunal. He did not attach a copy of the delegate decision with his application.
5. On 11 January 2019 the Tribunal wrote to the applicant to raise its concern that the review application was invalid because it had not been lodged within the prescribed timeframes. The letter invited the applicant to comment on the validity of the review application in writing by 25 January 2019. The Tribunal has never received a response from the applicant.
6. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 16 November 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. Accordingly, the Tribunal finds that the applicant is taken to have been notified of the decision on 16 November 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 13 December 2018.
7. As the application for review was not received by the Tribunal until 21 December 2018 the application for review was not made in accordance with the relevant legislation. There is no power for the Migration and Refugee Division of the Tribunal to extend the time for lodging a review application and therefore the Tribunal has no jurisdiction in this matter.

DECISION

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

Nathan Goetz
Member