1709488 (Refugee)

[2017] AATA 1531

1709488 (Refugee) [2017] AATA 1531 (18 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1709488

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Angela Cranston

DATE:18 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 18 August 2017 at 5:01pm

CATCHWORDS
Refugee – Protection Visa – Bangladesh – Out of time - No Jurisdiction

LEGISLATION
Migration Act 1958, ss 65, 66(1), 412, 494
Migration Regulation 1994, Schedule 2, r 4.31(2)

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 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, [in] February 2017, 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 1 May 2017. 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 material before the Tribunal indicates that the applicant was notified of the decision by letter dated [date] February 2017 and dispatched by post.

4.    The Tribunal wrote to the applicant at the applicant’s last notified email address on 26 May 2017 as follows:

It appears that your application is not a valid application as it was not lodged within the
relevant time limit. Pursuant to r.4.31(2) of the Migration Regulations 1994, the period
in which an application for review of a Part 7-reviewable decision must be given to the
Tribunal is 28 days, commencing on the day the applicant is notified of the decision. In
DZAFH v Minister for Immigration [2017] FCCA 387, the Federal Circuit Court held
that the prescribed period in r.4.31 commences on, and includes, the day the applicant
is taken to have been notified of the decision: at [44] – [46].

The primary decision was posted to you on [date] February 2017 and, on the basis that [date] February 2017 was the date on which you are taken to have been notified, the last day for lodging the application for review was [date] March 2017. As the application was not received until [date] May 2017, it appears to be out of time. However this is a matter which must be determined by a Member.

5.    The applicant’s adviser responded as follows:

The applicant states that:

The applicant received a letter from the Medicare office on [date] April 2017. The Medicare letter said that the applicant’s visa status has changed and the people on your Medicare card listed below will not be eligible for Medicare from [date] May 2017. The Medicare people said that they received a letter from the Department of Immigration.

The Medicare office asked to bring a proof that an application has been lodged with the migration and refugee review division of AAT or evidence of lodgement of a request for ministerial intervention.

The applicant checked his home letter box at [Address 1]. There was no any letter in that box from the Department of Immigration.

On 14 April 2017 the applicant checked the VIVO and found on VIVO that the applicant’s visa will expire [in] May 2017.

After that, the applicant rang to the department and gave the officer his file number for the application for the protection visa, date of birth and passport number.

The applicant told him that he has not received any decision letter about his protection visa application.

The applicant told him that the applicant checked the VIVO and explained to him that on VIVO it says that applicant’s visa will expire [in] May 2017.

The applicant told him that he knew from a letter from Medicare and on that letter it says that my visa will expire [in] May 2017.

The officer took some time to check the applicant’s file and told the applicant that decision was prepared on [date] February 2017 and a decision letter from the Department has been sent by registered mail on [date] April 2017 at [Address 1]. The officer told me that you have changed the address [in] February 2017 and the decision was sent on [Suburb 1] address.

On the original letter the applicant’s old address of [Suburb 2] was given because of that he was concerned. The decision letter was sent on [Suburb 1] address.

The applicant said to the officer that he did not receive any registered mail.

The Department of Immigration officer told him to check the Australian Post at[Suburb 1]. The applicant went to [Suburb 1] post office and [Suburb 2] post office and enquired about the registered post from the Department.

The post officer checked any registered mail in the applicant’s name and they did not found anything.

Then, again the applicant called to the Department of Immigration officer and told him that there is no any registered mail in his name came to [Suburb 1] post office.

The officer told him that due to Easter week everything is closed and he should wait for next week.

By that time the applicant was always checking his mail and did not find any mail. After that, the applicant called again to the Department of Immigration. Another requested the applicant to go to the [Suburb 1] post office and check it again.

The applicant went to [Suburb 1] post office and checked again about any registered mail in his name. There was no registered letter in applicant’s name.

Again the applicant called the Department and the officer said may be something happen that is why you are not getting the decision and he asked for the applicant’s email address.

The applicant gave his [email address].

Department sent a copy of the notification and decision [in] April 2017 by registered post.

The applicant did not receive.

The Department sent decision through email [in] April 2017. The applicant received email [in] April 2017.

The applicant actually received the copy of decision and notice of decision [in] April 2017 at his [email address].

When the applicant opened the email he found the date of decision was [in] February about which the applicant was not knowing.

Again the applicant called the Department and told about the actual date of decision. Then the officer confirmed that it is not problem that the decision was made [in] February 2017 but the notification of decision was sent [in] April 2017 by registered post and again by email [in] April 2017.

The officer also told the applicant that last date for your visa is [date] May 2017 you can apply for review before [May] 2017.

It may be noted that the applicant informed the department about the change of his new address [in] February 2017 and it was confirmed by department [in] March 2017 that the address is up to dated (please find the email from the Department attachment four. The attached email from the department about confirmation of change of address)

The applicant believes that this is communication error.

The applicant received the notification of decision [in] April 2017 and filed application for review to the AAT on 1 May 2017.

After lodgement of application for review the applicant applied through [migration agent]. The applicant was notified by the department [in] May 2017 that the applicant granted a [temporary visa] [in] May 2017. (Please find of visa grant letter attachment 5)

We do believe that the department has accepted that the decision was sent to the applicant [in] April 2017 by post and again [in] April by email.

Applicant filed application for review within the time limit and his application for a review is valid.

6.    The Tribunal requested and received the following answers from the Department:  

When was the decision letter sent?

The decision record for [the applicant] was sent by Registered Post on the [date] February 2017.

Where was it sent?
It was posted to the client’s [Suburb 2] address which was the only address the Department had at that time.

Can you confirm when and if the applicant notified you of a change of address?
Yes, the Department received an email from [the applicant] in relation to his new address which was updated into the Department’s system on [date] March 2017.

Based on the information available on the Departmental systems the notification letter was sent prior to [the applicant] notifying us of the change of address.

FINDINGS

7. Section 66(1) provides that when the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way. Section 494B specifies alternative methods for giving a document to a person.

8. One of the methods specified in s.494B consists of the Minister and then dispatching it within 3 working days of the date of the document by prepaid post to the last residential address provided to the Minister by the recipient for the purposes of receiving documents (s.494B(4)).

9.    The material before the Tribunal indicates that the applicant was notified of the decision by letter [date] February 2017 and dispatched by post on the same day to [Address 2] which was the address identified as the applicant’s current residential address and current postal address in his protection visa application.  Although the applicant has suggested that an officer of the Department of Immigration told him that he changed his address [in] February 2017, the Department has stated that the Department received an email from the applicant in relation to his new address which was updated into the Department’s system [in] March 2017 and that based on the information available on the Departmental systems, the notification letter was sent prior to the applicant notifying them of the change of address.

1. Even if the Tribunal accepts the applicant’s evidence that an officer told him that he changed his address on [date] February 2017, he changed his address after the Department notified him of its decision.

2. The Tribunal is therefore satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

3. 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 2017. Therefore the prescribed period within which the review application could be made ended on [date] March 2017. As the application for review was not received by the Tribunal until 1 May 2017 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

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

Angela Cranston
Member