1711849 (Refugee)

[2017] AATA 1192

1711849 (Refugee) [2017] AATA 1192 (25 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711849

COUNTRY OF REFERENCE:                  Liberia

MEMBER:Jane Marquard

DATE:25 July 2017

PLACE OF DECISION:  Sydney

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

Statement made on 25 July 2017 at 1:30pm

CATCHWORDS
Refugee – Protection Visa – Liberia – Application for review lodged out of time – Change of address – No Jurisdiction

LEGISLATION
Migration Act 1958, ss 65, 494C
Migration Regulations 1994, Schedule 2, r 4.31(2)

CASES

Singh v MIBP [2015] FCCA 1714
Awon v MIBP [2015] FCA 846
SZRHA v MIAC [2013] FCA 531
BET16 v MIBP [2016] FCCA 3165
Haque v MIMIA [2006] FMCA 55
Wang v MIMIA [1997] 71 FCR 386

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 of a delegate of the Minister for Immigration [in] March 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 4 June 2017. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. 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.

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter [in] April 2017 and dispatched by post. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. Therefore the prescribed period to apply for review ended [in] May 2017.

4. On 13 June 2017 the Tribunal wrote to the applicant advising that it appeared that her application was not lodged within the relevant time limit. She was invited to make comments to the Tribunal by 27 June 2017.

5. On 26 June 2017 a response was received from her representative, [name]. He stated that the applicant acknowledged that the application for review was lodged outside the time limit. He stated that this was because the applicant received the decision letter on 1June 2017. It was posted to her old address which she had provided to the Department when she applied for the visa. She had moved to a new house in July 2016 after [an incident] which resulted in the police being invited to intervene (a police incidence number was attached). She then contacted [Organisation 1] to inform them of her new address. She said that she requested that [Organisation 1] contact the Department on her behalf with the new address. She understood that it was her duty to update her details to the Department but she relied on a “reputable organisation” to assist her. The address was updated by the [Organisation 1] on their database, as confirmed in an email from them, [In] April 2017. The email from [Organisation 1] said that her agent should have informed her to update the Department with her new address. The representative requested that her application for review be considered as valid.

6. Once an applicant has been validly notified of the primary decision, the application for review must be lodged with the Tribunal within the relevant prescribed period.[1] The Tribunal has no power to extend the time limit.[2]

   [1] In Singh v MIBP [2015] FCCA 1714 (Judge Lucev, 23 June 2015) at [22] the Court held jurisdictional error was not established by the fact that the applicant only had a limited time in which to lodge the application for review and had no assistance from a representative in doing so.

   [2] Awon v MIBP [2015] FCA 846 (Judge Beach, 14 August 2015).

7. This is the case even where the applicant is not at fault in making a late application. In SZRHA v MAIC,[3] while the Court accepted the applicant’s application was not lodged in time because of negligence on the part of her migration agent, it held the terms of the Migration Act are strict and clear and neither the Tribunal nor the Court have power to allow extra time for the lodgement of a review application. Similarly, in BET16 v MIBP,[4] the Court considered the situation of an applicant in immigration detention whose review application was not lodged in time due to unsuccessful attempts by a Serco officer to fax the review application to the Tribunal. The applicant stated that he was reliant upon Serco officers for administrative procedures, such as lodging the review application. The Court found that the applicant was left in the same position as an applicant whose migration agent fails to lodge an application within the required time, and held that the application was out of time, and even if that is harsh and significant injustice arises, the statutory provision allows no interference. In Haque v MIMIA,[5] the Court considered whether the doctrine of estoppel could operate to confer power on a statutory body such as the Tribunal in circumstances where the Tribunal misrepresented the time limit for the applicant to make his or her review application. The Court applied the decision of Merkel J in Wang v MIMIA[6] and found that the doctrine of estoppel cannot be relied upon as a relief against non-compliance with a requirement that a statute intends to be satisfied.  In other words, the time limits are mandatory.

   [3] [2013] FMCA (Cameron FM, 14 February 2013). Upheld on appeal: SZRHA v MIAC [2013] FCA 531 (Nicholas J, 16 May 2013).

   [4] [2016] FCCA 3165 (Judge Smith, 14 December 2016) at [20].

   [5] [2006] FMCA 55 (McInnis FM, 31 January 2006).

   [6] [1997] 71 FCR 386.

8. The Tribunal finds therefore that the applicant is taken to have been notified of the decision [in] April 2017: s.494C of the Act. Therefore the prescribed period to apply for review ended [in] May 2017. As the application for review was not received by the Tribunal until 4 June 2017 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.

   Jane Marquard
   Member