1503946 (Refugee)

[2015] AATA 3134

1503946 (Refugee) [2015] AATA 3134 (6 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503946

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Stuart Webb

DATE:6 July 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 06 July 2015 at 10:34am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated [in] January 2015, 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 [in] March 2015.

2. The matter was initially constituted to a different member, who invited the applicant to a hearing to discuss his circumstances. However that member was no longer able to determine matters at the Tribunal and the application was reconstituted to the present Tribunal. The present Tribunal has considered the issue of jurisdiction before considering whether to invite the applicant to a hearing of his application.

3. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

4. Pursuant to s.412(1)(b) of the Act and r.4.31 of the Migration Regulations 1994, an application for review of this decision had to be made within 28 days after the applicant was notified of the decision in accordance with the statutory requirements.

5. The Tribunal wrote to the applicant regarding his circumstances. On 23 April 2015 and officer of the Tribunal wrote:

   I am of the view that your application is not a valid application as it was not lodged within the relevant time limit. The time limit is 28 days from the day on which you are taken to have been notified of the primary decision. The primary decision was posted to you on [date] January 2015 and, on the basis that [date] February 2015 was the date on which you are taken to have been notified, the last day for lodging the application for review was [date] March 2015. As the application was not received until [later in] March 2015, it appears to be out of time. However, this is a matter which must be determined by a Tribunal member.

   If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 7 May 2015. Your application, with any comments you make, will then be referred to a Tribunal member to make a decision on your application. If the Tribunal member decides that you have not made a valid application, you will be given a written statement of decision and reasons.

6. The applicant responded to this letter. He stated that he was living at a residence with [other] boarders. He believed that during January 2015 a letter from the Immigration office was delivered to the address, and one of the boarders who received it did not hand it over to him. He had made enquires with the boarders who did not respond. The applicant provided an Australia Post ‘proof of delivery’ document that had a signature included, which the applicant stated is not his signature. This stated that a registered post letter was documented as delivered at 09:57 on [date] January 2015. A corresponding Australia Post ‘delivered’ Registered Post service document of the same date and time is on the Department’s file.

7. The present Tribunal has considered the guidance as to the methods of notification in the Migration Act and Regulations. Section 66(1) of the Migration Act and r.2.16(3) of the Regulations require the Minister to notify the applicant of a decision to refuse a visa by one of the methods specified in s.494B of the Migration Act. The methods specified under s.494B are:

   ·     handing the document to the recipient - the Minister or an authorised officer handing the document to the applicant[1];

   ·     handing the document to another person - the Minister or an authorised officer handing the document to another person at the applicant’s last residential or business address[2].  That other person must appear to live or work at the address and must appear to be over 16 years of age.

   ·     posting the document - the Minister dating the document and dispatching it by prepaid post or by other prepaid means within 3 working days (in the place of dispatch) of the date of the document to the last address for service or last residential or business address provided by the recipient to the Minister for the purposes of receiving documents.[3]

   ·     faxing, emailing the document - the Minister transmitting the document by fax, or e-mail, or other electronic means to the last fax number, e-mail address, or other electronic address provided to the Minister for the purposes of receiving documents[4].  

   [1] 494B(2).

   [2] s.494B(3).

   [3] s.494B(4).

   [4] s.494B(5).

8. The relevant provision in this circumstance is the posting of the decision to the last residential address of the applicant, as provided by the applicant to the Department in his application.

9. If the applicant is notified of the primary decision by the s.494B(4) method, the relevant s.494C provisions provide that the decision will be taken to have been received as follows:

   if the decision is dated and sent by prepaid post or other prepaid means - the applicant is taken to have received the document 7 working days (in the place of the address) after the date of the document if dispatched from a place within Australia to an address within Australia[5] or after 21 calendar days in all other cases;[6]

   [5] s.494C(4)(a).

   [6] s.494C(4)(b).

10. The evidence of the applicant is that the item was sent by prepaid post, and arrived at the residential address of the applicant on [date] January 2015. The applicant has claimed that the letter was collected by someone else living at the address and that it was not provided to him, that he came to know about the letter much later. The applicant in his submissions states he was residing at the address at the time the letter was sent to him at that address.

11. This evidence shows the correct address was used by the Department. The required information was included in the Department’s notification letter. The applicant has also not claimed that it was incorrectly addressed to him by name, the Australia Post document provided by the applicant has the correct surname of the applicant included, as does the notification letter provided by the applicant to the Tribunal.

12. With respect to notification of the decision to refuse his application, the Tribunal considers that the Department has correctly notified the applicant of its decision pursuant to the provisions of the Migration Act. They have sent the decision by registered post to the correct address of the applicant. By operation of the provisions of s.494C(4)(a), the applicant is taken to have received the document 7 working days after the document is despatched from a place within Australia to an address within Australia. That he states that someone else collected the letter does not mitigate the provisions of the Act and the relevant notification provisions therein. The actions of the people at the address where the applicant resided do not affect the notification provisions. The applicant is deemed to have received the decision 7 working days after the date of the document was despatched. Having deemed to have received it, the time period permitted for lodging his review application commenced after the 7 working says elapsed.

13. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated [in] January 2015 and dispatched by registered post. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

14. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on [date] February 2015. Therefore the prescribed period within which the review application could be made ended on [date] March 2015. As the application for review was not received by the Tribunal until [later in] March 2015 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

15. Having determined that the Tribunal has no jurisdiction in this matter, the Tribunal is unable to invite the applicant to discuss his substantive application.

    DECISION

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

    Stuart Webb
    Member