1812109 (Refugee)

[2018] AATA 2774

1812109 (Refugee) [2018] AATA 2774 (7 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

[Mr C][Mr B]CASE NUMBER:  1812109

COUNTRY OF REFERENCE:                  China

MEMBER:Mila Foster

DATE:7 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 07 June 2018 at 3:20pm

CATCHWORDS
Refugee – Protection Visa – China – Application lodged out of time – No jurisdiction

LEGISLATION
Migration Act 1958, ss 65, 66, 494
Migration Regulations 1994, rr 2.16, 4.31

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 8 March 2018 to refuse to grant protection visas under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 27 April 2018. For the following reasons, I find that the Tribunal has no jurisdiction to review the decision.

2. According to details provided in the review application form and the delegate’s decision record which was attached to the review application, this is an application for review of a decision to refuse to grant [Mr A] and [Mr B], his son, protection visas. The review application was made by [Mr C] and [Mr B]. Details provided for [Mr C] in the review application correspond to details in the Department of Home Affairs ISCE database for [Mr A] but no person named [Mr C]. A response to an email the Tribunal sent to the email address provided for the purposes of the review was received from [Mr A]. I am thus satisfied that [Mr A] and [Mr C] are the same person.

3. 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.

4. Section 66(1) of the Act and r.2.16(3) of the Regulations require the Minister to notify the applicant of a decision to refuse a visa by one of the methods specified in s.494B of the Act. Those methods include transmitting the document by e-mail to the last e-mail address provided to the Minister for the purposes of receiving documents: s.494B(5). The material before the Tribunal indicates that the applicants were notified of the delegate’s decision by letter dated 8 March 2018 which was dispatched by email on the same day to the last email address the applicants had provided to the Minister for the purposes of receiving documents. I am satisfied that the applicants were notified of the decision in accordance with the statutory requirements.

5. If an applicant is notified of a decision to refuse them a visa by a method specified in s.494B(5), the applicant is taken to have received the document by the end of the day on which the document was sent. I thus find that the applicants are taken to have been notified of the delegate’s decision to refuse them protection visas on 8 March 2018: s.494C(5). Therefore, the prescribed period to apply for review ended on 4 April 2018.

6. [Mr A] informed the Tribunal that he understood the timeframe to lodge the application for review but the refusal letter was sent to his junk mail and he had missed the deadline when he checked his junk mail. He asked that it be taken into account that he did not intentionally lodge the review application late. However, the decision record was sent in accordance with the Act and thus even if it ended up in the applicants’ junk mail they are nevertheless taken to have been notified of the decision on 8 March 2018. Further, the Tribunal has no discretion to waive the period of time within which an application for review must be lodged even if the application was late due to circumstances beyond the control of the applicants.

7. As the application for review was not received by the Tribunal until 27 April 2018 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Mila Foster
   Member