1813510 (Refugee)

[2018] AATA 2548

1813510 (Refugee) [2018] AATA 2548 (31 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1813510

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Brendan Darcy

DATE:31 May 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 31 May 2018 at 11:50am

CATCHWORDS
Refugee – Protection visa – Vietnam – Review application lodged out of time – Decision under review lodged out of time – No jurisdiction

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 4.31

CASES
DZAFH v Minister for Immigration [2017] FCCA 387

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 21 February 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 9 May 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: r.4.31(2) of the Migration Regulations 1994. In DZAFH v Minister for Immigration [2017] FCCA 387, the Federal Circuit Court held that the prescribed period in r.4.31 commences on, and includes, the day the applicant is taken to have been notified of the decision: at [44] – [46].

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 21 February 2018 and dispatched by email.

4. On 14 May 2018, the Tribunal invited the applicants to comment on the validity of their review application, noting that the application was not lodged within the relevant time limit, and to respond by 28 May 2018.

5. On 23 May 2018, the applicants responded by forwarding an email with an attached letter signed by [the primary applicant]. The letter claimed the applicants did not receive anything that informed him about the refusal decision from the Department until 7 May 2018. The triggering event was when the applicants became aware that the Medicare card was no longer valid [in] May 2018 and they called the Department to seek an explanation and for the letter to be resent, which they received on 7 May 2018. [The primary applicant] was confident that the did not receive the correspondence as he checked the mail box every day.

6. Records, including the notification letter of the decision record dated 21 February 2018 submitted by the applicants to the Tribunal, indicates the applicant was notified of the refusal decision was dispatched by email. ICSE (Integrated Customer Service Environment) records indicates to the Tribunal that the Department used an email address to notify the applicants for their biometrics appointment (on 1 September 2016) and interview appointments (on 3 January 2018).[1] There is no evidence that a postal address had been used or nominated by the applicants as the preferred mode of contact for the purposes of receiving documents, either at the time of application or right up to the date of the notification of the refusal decision.  

   [1] AAT Folio 46-48

7. Based on the available evidence, the last known contract address provided by the applicants was not a postal address but an email address: [email] – same email address used by the Department on 21 February 2018 when it notified the refusal decision. Accordingly, the Tribunal is satisfied that the applicants were notified by email via the last known address provided to the applicants for the purposes of receiving documents, in accordance with s.494B(5) of the Act.

8. For the reasons stated above, the Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

9. The Tribunal finds that the applicant is taken to have been notified of the decision on 21 February 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 20 March 2018.

10. The Tribunal does not have any discretionary powers to alter the prescribed period for a valid lodgement.

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

    DECISION

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

    Brendan Darcy
    Member