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

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.
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.
The material before the Tribunal indicates that the applicant was notified of the decision by letter dated [date] April 2017 and dispatched by post.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 1684
Decision Date: 28 September 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for review of a decision concerning a protection visa. The applicant sought to challenge a decision made in relation to their protection visa application, which was processed under arrangements involving Papua New Guinea.

The primary legal issue before the Tribunal was whether the application for review had been lodged within the time prescribed by the relevant legislation. This question turned on when the applicant was deemed to have been notified of the original decision.

The Tribunal applied section 494C of the *Migration Act 1958* (Cth), which deems a person to have been notified of a decision on a specific date. In this instance, the Tribunal found that the applicant was taken to have been notified of the decision on 19 April 2017. Consequently, the prescribed period for lodging an application for review expired on 17 May 2017. As the application for review was not received by the Tribunal until 21 July 2017, it was not made in accordance with the legislative requirements.

Therefore, the Tribunal concluded that it lacked jurisdiction to consider the merits of the application for review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 The Tribunal does not have jurisdiction in this matter.Meena SripathyMember

Ratio Decidendi

Legal Principle Established

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