1806156 (Refugee)

[2018] AATA 927

1806156 (Refugee) [2018] AATA 927 (28 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1806156

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Jason Pennell

DATE:28 March 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 28 March 2018 at 1.57am

CATCHWORDS
Refugee – Protection visa – Malaysia – Invalid application – Application out of time – Deemed to have received notification by the Department

LEGISLATION
Migration Act 1958, ss 65, 494C
Migration Regulations 1994 rr 2.55, 4.31

CASES
Cheng v Minister for Immigration and Citizenship (2011) 198 FCR 559
Minister for Immigration and Citizenship v Manaf [2009] FCA
Xie v Minister for Immigration and Multicultural and Indigenous Affairs [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

1. This is an application for review of a decision of a delegate of the Minister for Immigration on [date] February 2018 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 7 March 2018. 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.[1]

   [1] 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 1 February 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. By a letter dated 13 March 2018 the Tribunal advised the applicant that his application was not valid as it was not lodged within the relevant time limit. The Tribunal invited the applicant to make any comments on whether a valid application had been made in writing, by 27 March 2018. By an email dated 25 March 2018 the applicant stated that his application was late firstly, because he had not been informed how to calculate 28 days after the date of the delegates decision and secondly, he had problems with his mobile phone and could not see the letter until after the phone was fixed.  

5. By the departments letter dated 1 February 2018 the applicant was informed of the timeframe in which to apply to the Tribunal for a review of the delegate’s decision. The letter stated that the applicant is entitled to apply to the Tribunal for a merits review of the decision and that the application for review must be given to the Tribunal within the prescribed timeframes. It specifically states that the timeframe for a review application commences ‘on the day on which you are taken to have been notified of this decision and ends at the end of 28 days.’  

6. Finally, the fact that the applicant had problems with his mobile phone and could not see the letter until after it was fixed is not a reason that would allow the Tribunal to extend the timeframes prescribed in s.494C of the Act. That is, when the applicant is deemed to have received the delegate’s decision.

7. Pursuant to s.494C a person is deemed to have received a document regardless of what events actually transpired. That is, it is ‘a statutory deeming provision’ that ‘does not create a rebuttable presumption that notification has occurred’.[2] The section provides that in certain circumstances a person is taken to have received a document.[3] The time periods prescribed in s.494C for when a document is deemed to have been received is not capable of being extended.[4]

   [2] Minister for Immigration and Citizenship v Manaf [2009] FCA @ [21] per Sunberg J.

   [3] Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 @ [13] Spender, Kiefel and DowsettJJ.

   [4] Cheng v Minister for Immigration and Citizenship (2011) 198 FCR 559

8. The Tribunal finds that the applicant is taken to have been notified of the decision on 1 February 2018.[5] Therefore, the prescribed period to apply for review ended on 28 February 2018.

   [5] s.494C of the Act or r.2.55 of the Regulations

9. As the application for review was not received by the Tribunal until 7 March 2018 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

    Jason Pennell
    Member