1813906 (Refugee)

[2018] AATA 2776

1813906 (Refugee) [2018] AATA 2776 (19 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1813906

COUNTRY OF REFERENCE:                  Taiwan

MEMBER:Nathan Goetz

DATE:19 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 19 June 2018 at 2:55pm

CATCHWORDS
Refugee – Protection visa – Taiwan – Review application out of time

LEGISLATION
Migration Act 1958, ss 65, 494C
Migration Regulations 1994, r 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 to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. On 8 September 2017 the applicant lodged a protection visa and on 11 April 2018 the delegate refused to grant the applicant the visa. On 14 May 2018 the applicant lodged an application for a review of this decision with the Tribunal.

3. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

4. The material before the Tribunal indicates that the applicant was notified of the delegate decision by letter dated 11 April 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements and the Tribunal finds that the applicant is taken to have been notified of the decision on 11 April 2018: s.494C of the Act.

5. 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. Therefore the prescribed period to apply for review ended on 8 May 2018. The Tribunal wrote to the applicant by letter dated 1 June 2018 and dispatched by email advising the applicant that it appeared the Tribunal did not have jurisdiction to review his case because he had not filed his review application within time. The letter invited the applicant to comment on or respond to this issued by 15 June 2018.

6. On 14 June 2018, the Tribunal received an email from the applicant. He wrote that he had never received the notification letter by email or by post. He said that he felt ‘very innocent about it’ and hoped that the AAT could investigate it carefully so he would not lose his review rights as they were important to him. He also wrote that he only realised that he missed the delegate decision due to a telephone call from the department and would have not otherwise known about the decision.

7. The Tribunal has considered the applicant’s response to this jurisdiction issue. However, the Tribunal notes that the original delegate decision was sent to the very same email address that the applicant put down as his email address for service from the Tribunal. Further, in his application for review form, he attached the delegate decision which indicates that he had indeed received the original delegate decision. Finally, the applicant’s response to the Tribunal letter regarding the jurisdictional issue came from the same email address to which the original delegate decision had been sent. Given these facts, the Tribunal is satisfied that the applicant was notified of the decision on 11 April 2018 by letter dispatched by email to his email address.

8. As the application for review was not received by the Tribunal until 14 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

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

   Nathan Goetz
   Member