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 timing and validity of the notification. The Tribunal has before it background information from the Department file as well as [Mr B]’s recent email, which it draws on below.
§ [Ms A] completed Form 956 [in] September 2016, giving her business address in [a particular location], and advising that this was the address for correspondence.[2] She also agreed to the Department communicating to her by email, and provided her email address. It appears that, in practice, the Department and [Ms A] communicated via email.
- In an email dated [in] January 2018[3], the Department delegate confirmed his understanding that the decision notification was sent to the correct address, as recorded on the Department files. He invited [Mr B] and the applicants to advise if they had subsequently notified the Department of another address for correspondence. There is no record of [Mr B] or the applicants having provided any other address for correspondence.
§ The letter notifying the applicants of the decision was sent by registered post [in] December 2017, to the address for correspondence. It was returned to the Department [later in] December 2017 with the annotation ‘no longer at this address’.
§ According to [Mr B’s] submission and copies of emails with the Department, [Ms A] only learned about the decision [after the time limit had expired], by email from the Department (upon which she promptly lodged the first application for review).
[2] Department file [file number], folio 92.
[3] [Mr B] provided a copy of this in his email to the Tribunal.
[Mr B]’s submission confirms the applicants’ understanding that ‘the decision was sent by registered post and […] that the post [was] returned to the Department undelivered.’ It also contains excerpts from various court judgements relating to Tribunal jurisdiction and prescribed periods, most notably the Federal Court’s decision in SZQVV v MIAC[4]. The arguments in the submissions and the relevance of the decision references are not entirely clear. However, the submission appears to contend the following:
§ The Department should ideally have continued to correspond with the applicants (through their migration agent) via email.
§ It ‘seems to be negligence on the part of either parties’ – that is, the Department and/or the former migration agent [Ms A] – that there was no further action after the notification letter was returned to the Department unclaimed [in] December 2017. [Mr B] goes on to suggest that the Department should have then taken the initiative to email it to the agent or the applicants.
§ [Mr B] seems to suggest that, given that the applicants did not in fact receive the notification, they cannot be ‘taken to have received it’. This appears to be a misunderstanding of the meaning of s.494C(4)(b), in relation to deemed receipt of decision notifications when sent by prepaid post.
§ [Mr B] also mentioned, in an email dated [in] January 2018 to the Department (a copy of which he provided to the Tribunal) that the Department should have sent the applicants a second notification by email, in order to enable them to lodge a valid application for review. In his submission of 12 February 2018, he implies that the Department’s email of [a later date in] January 2018, which has attached to it a copy of the notification and assessment, might be a valid further notification. The Tribunal is of the view that the Department’s email of [January] 2018 was merely providing the applicants with a copy of the primary decision, and not even purportedly ‘renotifying’ them of it. Furthermore, once a decision has been correctly notified in accordance with the Migration Act, there is no further obligation on the Minister’s part. The time limit within which to make a valid review application will already have commenced to run.[5]
[4] SZQVV v MIAC [2012] FCA 1471
[5] MIAC v Abdul Manaf (2009) 113 ALD 88. See also Zhang v MIAC (2007) 161 FCR 419 at [25]; Nguyen v MIAC [2009] FMCA 933 (Burchardt FM, 25 September 2009) at [40]; Singh v MIAC (2010) 239 FLR 387 at [61]; Nemuseso v MIAC [2010] FMCA 957 (Nicholls FM, 9 December 2010); MZYIE v MIAC [2010] FMCA 994 (Turner FM, 17 December 2010); Li v MIAC [2011] FMCA 12 (Nicholls FM, 17 January 2011) at [104] and [112]; SZOPD v MIAC [2011] FMCA 178 (Lloyd-Jones FM, 1 April 2011); Patel v MIAC [2011] FMCA 223 (Burchardt FM, 7 April 2011); Patel v MIAC [2012] FMCA 565 (O’Dwyer FM, 29 June 2012) at [28]-[31].
The Tribunal finds that the applicants are taken to have been notified of the decision [on a particular date in] December 2017: s.494C of the Act.
As the applicants were not in immigration detention on the day they were 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. Therefore the prescribed period to apply for review ended on [a date earlier than 15 January 2018].
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 Silva
Member