1801025 and 1801272 (Refugee) - [2018] AATA 644

1801025 and 1801272 (Refugee) [2018] AATA 644 (12 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBERS:  1801025 and 1801272
COUNTRY OF REFERENCE:                  Iraq
MEMBER:James Silva
DATE:12 March 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal does not have jurisdiction in these matters.
Statement made on 12 March 2018 at 7:23pm

CATCHWORDS
Refugee – Protection Visa – Iraq – Notification of decision sent to applicant’s previous representative – Whether applicants are taken to be notified of the Department’s decision – Notification sent to nominated address - Minister under no further obligation to notify applicants
LEGISLATION
Migration Act 1958, ss 65, 494C
Migration Regulations 1994, r.4.31(2)
CASES
Li v MIAC [2011] FMCA 12
MIAC v Abdul Manaf (2009) 113 ALD 88
MZYIE v MIAC [2010] FMCA 994
Nemuseso v MIAC [2010] FMCA 957
Nguyen v MIAC [2009] FMCA 933
Patel v MIAC [2011] FMCA 223
Patel v MIAC [2012] FMCA 565
Singh v MIAC (2010) 239 FLR 387
SZOPD v MIAC [2011] FMCA 178
SZQVV v MIAC [2012] FCA 1471
Zhang v MIAC (2007) 161 FCR 419
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

These are two (separate) applications for review of a decision of a delegate of the Minister for Immigration [in] December 2017 to refuse to grant protection visas under s.65 of the Migration Act 1958 (the Act).
The first review application was lodged with the Tribunal on 15 January 2018, submitted on the applicants’ behalf by a registered migration agent [Ms A], who was then acting as the applicants’ representative. The second review application was lodged with the Tribunal on 17 January 2018, submitted by the applicants’ current registered migration agent [Mr B]. [Mr B] is now the representative in both these matters.
For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
The Tribunal wrote to the applicants on 30 January 2018 inviting them to comment on its preliminary view that their applications for review appeared to be invalid, as they were not made within the relevant time limits[1]. The Tribunal received the applicants’ comments by email on 12 February 2018, which included a copy of some email correspondence between [Mr B] and Department officers. The Tribunal incorporates these into the assessment below.
[1] The Tribunal wrote two letters to the applicants, via their registered migration agent and authorized recipient. The letters were identical, except for the dates on which the respective applications for review were lodged.
The material before the Tribunal indicates that the applicants were notified of the decision by letter dated [in] December 2017, addressed to [Ms A]’s address for correspondence, and dispatched by post.
The applicants’ current migration agent [Mr B] raised some questions about the…

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: [2018] AATA 644
Decision Date: 12 March 2018

CaseChat Overview and Summary

The applicants sought review of decisions made by the Minister regarding their applications for protection visas. The core of the dispute concerned whether the applicants had been validly notified of the Department's decision, which in turn affected the timeliness of their applications for review lodged with the Tribunal. The matter came before the Tribunal, constituted by Member James Silva.

The primary legal issue before the Tribunal was whether the applicants were taken to have been notified of the Department's decision when notification was sent to their previous representative at a nominated address. This question was critical to determining whether the applications for review were lodged within the statutory time limits, thereby establishing the Tribunal's jurisdiction.

The Tribunal found that the applications for review were not received until 15 January 2018. Applying the relevant legislative provisions, the Tribunal determined that these applications were therefore not made in accordance with the law. Consequently, the Tribunal concluded that it lacked jurisdiction to hear and determine the matters.

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

As the applications for review were not received by the Tribunal until 15 January 2018, the applications for review were not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in these matters.DECISION The Tribunal does not have jurisdiction in these matters.James SilvaMember

Ratio Decidendi

Legal Principle Established

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