1600203 (Refugee)

[2016] AATA 3382

1600203 (Refugee) [2016] AATA 3382 (16 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1600203

COUNTRY OF REFERENCE:                  Stateless

MEMBER:David Corrigan

DATE:16 February 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 16 February 2016 at 5:46pm

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. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] November 2015 to cancel the applicant’s Subclass 866 Protection (Class XA) visa under s.109 of the Migration Act 1958 (the Act).  The review application was lodged with the Tribunal on 7 January 2016.  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. Under 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 wrote to the applicant on 12 January 2016 seeking his comments on the issue of the validity of the review application due to it being lodged outside the relevant time limits.  On 20 January 2016, the applicant’s agent replied in writing and set out the history of his email correspondence with the delegate.  The agent states that he had received an email from the delegate [in] January 2016 stating that she had sent the notification of cancellation decision [in] November 2015 and that the delegate had attached a copy of the decision.

4. The agent states that after receiving the email from the delegate, he checked his email and that his provider was Gmail. He says that he received emails on three different devices and he checked all of these and also his email through the Gmail website.  He said he could not find the email on any of these devices or the main server.  The agent claims that the delegate sent the email to an incorrect address.  He has submitted a copy of the email sent by the delegate to him [in] January 2016 and requested that the Tribunal open the copy of the email sent by the delegate and put a cursor on the email address hyperlink and that it appears as mailto:[email]  and not as[email] .  He then requested the Tribunal to click on the hyperlink [SMTP:mailto:[email]] and he stated that the email address will appear in the address box of Outlook Express or similar applications as[email]], which is said to be an incorrect address.

5. The Tribunal has undertaken these actions but it does not accept that the appearance in hyperlinks of mailto:[email]] or the temporary appearance of[email].com] in Outlook means that the delegate sent the email to an incorrect email address.  Simple Mail Transfer Protocol or SMPT is the protocol used for sending e-mail over the Internet.  When the Tribunal clicked on [email] in the email of the delegate, it appears as [email]in Outlook.  An email client (such as Outlook) uses SMTP to send a message to the mail server, and the mail server uses SMTP to relay that message to the correct receiving mail server.  Basically, SMTP is a set of commands that authenticate and direct the transfer of electronic mail.[1]  mailto: is a Uniform Resource Identifier (URI) scheme for email addresses. It is used to produce hyperlinks on websites that allow users to send an email to a specific address without first having to copy it and enter it into an email client.[2]

   [1] - accessed 12 February 2016.

   [2] - accessed 12 February 2016.

6. The evidence shows that the agent submitted a Form 956 Advice by Agent form (signed [in]  October 2014) to the Department agreeing to the Department communicating with him as the authorised recipient by email to the address [email](ff.53-54).  It also shows that [in] May 2015, he emailed the Department using that email address to advise of a new postal address (f.72).  It further shows that on 25 November 2015, the delegate emailed and transmitted the decision record and notice of cancellation to the correct email address [email] (f.138).  The Tribunal does not consider that the applicant made an error in sending the documents and it finds that s.494C(7) of the Act is not applicable.

7. Under r.2.42(1) of the Regulations, if the Minister cancels a visa under section 109 of the Act, the Minister must notify the former holder of the visa in writing that the visa has been cancelled.  As the applicant had nominated an authorised recipient, r.2.55 of the Regulations does not apply[3] and s.494A of the Act instead applies which enables the Minister to give a document to a person by any method that he or she considers appropriate.  The delegate of the Minister transmitted the decision by email (s.494B(5) of the Act) to the applicant’s authorised recipient and under s.494C(5) of the Act he is taken to have received the document at the end of the day on which the document is transmitted. The statutory provisions are mandatory and the Tribunal has no discretion not to apply them. 

   [3] Singh v MIAC (2011) 190 FCR 552.

8. The Tribunal finds that in accordance with the legislation, the applicant is taken to have been notified of the decision on 25 November 2015.  Therefore the prescribed period within which the review application could be made ended on 23 December 2015.  As the application for review was not received by the Tribunal until 7 January 2016, 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.

   DECISION

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

   David Corrigan
   Member