1726068 (Refugee) - [2017] AATA 3118

1726068 (Refugee) [2017] AATA 3118 (3 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1726068
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Dr Colin Huntly
DATE:3 November 2017
PLACE OF DECISION:  Perth
DECISION:The Tribunal does not have jurisdiction in this matter.
Statement made on 03 November 2017 at 3:25pm

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

CASES
Awon v MIBP [2015] FCA 846
Hamad v MIMA [2006] FMCA 1510
Haque v MIMIA [2006] FMCA 55
Lee v MIMA [2002] FCAFC 305
MZNAX v MIMIA [2004] FCA 1126
Singh v MIBP [2015] FCCA 1714
SZEBS v MIMIA [2006] FCA 456
VAQ v MIMA [2002] FCA 170
VOAM v MIMA [2003] FCA 396
Xie v MIMIA [2005] FCAFC 172
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 15 September 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 24 October 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 15 September 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
The Tribunal has had regard to a submission made by the applicant, forwarded to the Tribunal by email on 27 October 2017. This submission states as follows:
I am writing in relation to an application explain to the Migration and Refugee Division of the AAT the cause of the delay to lodge the application because myself ([name]) did not receive any notification or acknowledgement letter from The Department regarding my application on 15 September 2017 as above case until I aware my visa 12 October 2017.
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…

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 3118
Decision Date: 3 November 2017

CaseChat Overview and Summary

The applicant sought review of a decision concerning a protection visa. The primary dispute revolved around whether the application for review was lodged within the prescribed time limits. The matter was heard by Dr Colin Huntly, a Member of the Tribunal.

The central legal issue before the Tribunal was whether it possessed jurisdiction to hear the applicant's review application, given that it was lodged after the expiry of the statutory time limit. This required the Tribunal to determine the date on which the applicant was deemed to have been notified of the original decision.

The Tribunal applied section 494C of the Act, which deems notification of a decision to have occurred on a specific date. In this instance, the Tribunal found that the applicant was taken to have been notified on 15 September 2017. Consequently, the prescribed period for lodging an application for review expired on 12 October 2017. As the application was received by the Tribunal on 24 October 2017, it was not made within the statutory timeframe.

The Tribunal concluded that it lacked jurisdiction to consider the review application due to the failure to comply with the legislative time requirements.

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 15 September 2017: s.494C of the Act. Therefore the prescribed period to apply for review ended on 12 October 2017. As the application for review was not received by the Tribunal until 24 October 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.Dr Colin HuntlyMember

Ratio Decidendi

Legal Principle Established

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