1715957 (Refugee)

[2017] AATA 1684

1715957 (Refugee) [2017] AATA 1684 (28 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1715957

COUNTRY OF REFERENCE:                  Papua New Guinea

MEMBER:Meena Sripathy

DATE:28 September 2017

PLACE OF DECISION:  Sydney

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

Statement made on 28 September 2017 at 11:54am

CATCHWORDS
Refugee – Protection visa – Papua New Guinea – Invalid application – Notification of decision – No jurisdiction

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

CASES
Zhang v MIMA (2007) 210 FLR 268
Zhang v MIAC (2007) 161 FCR 419
Bataju v MIBP [2014] FCCA 2922

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 on [date] April 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 21 July 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 dated [date] April 2017 and dispatched by post.

4. On 10 August 2017 the Tribunal wrote to the applicant to invite his comment on its preliminary view that the application for review was not a valid application because it appeared to be lodged outside the relevant time limit.  As the primary decision was posted to him on [date] April 2017, [date] April 2017 was the date he was taken to be notified and the last day to lodge his application was [date] May 2017. However the application was not received until 21 July 2017. The applicant was given until 24 August 2017, extended by request to 7 September 2017, to provide comments. 

5. On 31 August 2017 the Tribunal received a response to its invitation to comment from the applicant’s representative. The submissions argued that the applicant’s contact details were not updated when provided by him and the Department continued to communicate with him via incorrect details until a date after [date] April 2017 and before 29 June 2017.  It was submitted that there is inadequate evidence that the Department dispatched the notification letter of [date] April 2017 as required and therefore, the deeming provisions do not apply.  The applicant was notified of the decision on the date it was sent to him by email [in] June 2017 and he applied for review within 28 days from the date he received the notice of decision, being [date] July 2017.

6. The Tribunal has carefully considered the submissions and arguments made in the applicant’s response and documents contained in the Department’s file before it.  The issue is whether the Department’s decision was properly dispatched within 3 working days as required by s494B.  Whether a document has been dispatched within 3 working days is a question of fact. While no specific type of evidence is required to ascertain that a document has been dispatched, probative evidence such as the Department’s electronic and/or file records, will assist to demonstrate that the Department has dated a document and dispatched it within 3 working days.[1]

   [1] See for example, Zhang v MIMA (2007) 210 FLR 268 at [23]-[24].Undisturbed on appeal: Zhang v MIAC (2007) 161 FCR 419; Bataju v MIBP [2014] FCCA 2922 (Judge Nicholls, 12 December 2014).

7. Perusal of the Department file indicates that the notification of decision letter was addressed to the applicant to the updated contact address he provided to the Department, on the Form 1022 dated [March] 2017.  The Tribunal notes the applicant’s submission states that he updated his contact details earlier than this, [in] February 2017, and the Tribunal acknowledges that electronic Client Contact records before it indicate this address for the applicant from this date. The Tribunal also acknowledges and accepts on the evidence of copies of the letters provided by the applicant in his submissions, that subsequent correspondence sent to the applicant appears to indicate confusion by the Department as to the correct address for him.  However, for the purposes of its consideration of the validity of this review application, it is only the notification of decision letter that the Tribunal is concerned with. This letter was correctly addressed to the applicant at the last address for service provided by him.  The Department file also contains a copy of the envelope with the applicant’s address and a Registered Post label and receipt sticker, indicating it was sent to him at that address by Registered Post. 

8. However, in light of the concerns raised by the applicant, the Tribunal made further enquiries of the Department to confirm that that it had been dispatched within 3 working days of the date of the document. The Tribunal specifically asked for confirmation and evidence that the notification letter was sent within 3 working days of the decision letter. 

9. On 27 September 2017, the Tribunal received a response from the Department, providing evidence in the form an email from the Decipha help desk sent by the National Operations Supervisor (Decipha) confirming that the applicant’s letter, referenced by the Registered Post receipt number, was sent on [date] April 2017, within the 3 working days. 

10. On the basis of this evidence, the Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

11. The Tribunal finds that the applicant is taken to have been notified of the decision on [date] April 2017: s.494C of the Act. Therefore the prescribed period to apply for review ended on [date] May 2017. As the application for review was not received by the Tribunal until 21 July 2017 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

    DECISION

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

    Meena Sripathy
    Member