1513291 (Refugee)

[2015] AATA 3904

1513291 (Refugee) [2015] AATA 3904 (16 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513291

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Glen Cranwell

DATE:16 December 2015

PLACE OF DECISION:  Brisbane

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

Statement made on 16 December 2015 at 12:07pm

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. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated [in] December 2014, 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] September 2015. 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.

2. 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.

3. The Tribunal has in its possession Department file CLF [number] relating to the applicant.    This file indicates that the applicant was notified of the decision by letter dated [in] December 2014 and dispatched by post.  The letter was sent to [address].  This address was provided by the applicant to the Department in his protection visa application lodged [in] December 2013. 

4. This file does not contain any evidence that the applicant, at any stage prior to the delegate’s decision, provided any other address to the Department for the purposes of receiving documents.

5. The Tribunal has been provided with a letter from the Department to the applicant dated [in] November 2014.  That letter advises that the Assistant Minister for Immigration had exercised her public interest power under s.197AD of the Act such that the applicant was to reside at [address].

6. Section 494B contains the following provisions relating to documents sent by post:

   Dispatch by prepaid post or by other prepaid means

   (4)  Another method consists of the Minister dating the document, and then dispatching it:

   (a)  within 3 working days (in the place of dispatch) of the date of the document; and

   (b)  by prepaid post or by other prepaid means; and

   (c)  to:

   (i)  the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or

   (ii)  the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or

   (iii)  if the recipient is a minor--the last address for a carer of the minor that is known by the Minister.

   [Emphasis added]

7. The letter from the Department to the applicant dated [in] November 2014 does not fall within the scope of s.494B(4)(c), as it does not contain an address provided to the Minister by the applicant.  Rather, it contains an address provided to the applicant by the Minister.

8. Accordingly, the Tribunal finds that the decision notification letter dated [in] December 2014 was sent to the last address for service and/or the last residential address provided by the applicant for the purposes of receiving documents.

9. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements that the letter was dispatched by prepaid post within 3 working days on the basis of the registered post tracking number.  The letter was subsequently returned to the Department [in] January 2015.

10. The Tribunal finds that, in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision [in] January 2015. Therefore the prescribed period within which the review application could be made ended [in] January 2015. As the application for review was not received by the Tribunal until [date] September 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.

11. The Tribunal notes that the factual circumstances of this case are unsatisfactory, in that the Department was plainly aware that the applicant was no longer living at [address].  However, as this was the last address provided by the applicant to the Department for the purpose of receiving documents, postage of the notification letter to this address was sufficient to trigger the deemed notification provision in s.494C of the Act.  The Tribunal has no discretion but to apply this provision, even if it leads to what might be considered to be an unsatisfactory outcome in the present case.

12. The Tribunal also notes that this matter has previously been remitted by consent by the Federal Circuit Court of Australia.  The orders contain the following notation:

    The First Respondent concedes that the decision dated [date] July 2015 is affected by jurisdictional error as the Second Respondent failed to properly consider whether the Applicant had been validly notified of the decision of the First Respondent.

13. The Tribunal has in this decision attempted to properly consider whether the applicant had been validly notified of the decision by the Department.  It is for others to judge whether it has succeeded in this endeavour.  While the Tribunal has the greatest respect for the consent orders, it has been unable on the guidance before it to identify any basis for not applying the deemed notification provisions as set out above.

14. While the Tribunal invited the applicant to address the provisions of s.494B(4) in its natural justice letter dated 1 December 2015, this was not a matter addressed in any substantive way in the applicant’s submissions dated [in] December 2015.  

15. Given the obvious Department error in this matter, the Minister may wish to consider exercising his powers under s.48B to enable the applicant to lodge a further protection visa application, which would then provide the applicant with the opportunity to exercise his review rights in the event of an unfavourable decision.  However, this is not a matter in respect of which the Tribunal has any jurisdiction.

    DECISION

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

    Glen Cranwell
    Member