1814484 (Refugee)

[2018] AATA 2833

1814484 (Refugee) [2018] AATA 2833 (27 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1814484

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Alison Murphy

DATE:27 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 27 June 2018 at 10:50am

CATCHWORDS
Refugee – Protection Visa – Pakistan – Whether the applicant was notified of the decision of the Department – Where correspondence sent to the applicant’s nominated address - Notification complied with statutory requirements – No requirement for applicant to actually receive notification – Application made outside of required timeframe – Tribunal does not have jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 494B, 494C
Migration Regulations 1994 (Cth), r 4.31

CASES
Maroun v MIAC [2009] FMCA 535
Nemuseso v MIAC [2010] FMCA 957
Pathania v MIBP [2015] FCCA 932

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 1 May 2017 to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act). For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. The applicant lodged his application for a protection visa with the department on 9 January 2017. In the Form 866 (Application for a Protection Visa) the applicant stated his current residential address was [Address 1], Victoria. In the declaration at question 100, the applicant gave the same address.  The applicant also lodged a Form 80 (personal particulars for assessment including character assessment) with his visa application.  In part D of that form, the applicant gave his residential address as [Address 1], Victoria.  In each of his Form 866 and Form 80, the applicant also provided a mobile phone number and an email address and consented to the Department communicating with him by email.

3. The material contained on the departmental file indicates that on 1 May 2017, a delegate made a decision to refuse the applicant a protection visa.  The applicant was notified of the decision by letter dated 1 May 2017 which was dispatched by post to [Address 1], Victoria.  On 10 May 2017 the decision and notification letter were returned to the department marked by handwritten notes stating “RTS – insufficient address” and “Unit No?”.  The applicant’s representative submitted a copy of the returned envelope and the address on that envelope is [Address 1], Victoria.

4. The review application was lodged with the Tribunal on 18 May 2018. On 24 May 2018 a Tribunal officer wrote to the applicant advising him that it appeared his review application may not be valid as it was not lodged with the relevant time limit and inviting his comment on whether a valid review application had been made.

5. On 7 June 2018 the applicant’s representative provided written submissions, setting out a chronology of events relating to the posting and return of the decision and notification letter dated 1 May 2017. It was submitted that because the documents were returned to sender, the applicant did not become aware that his application had been refused until he contacted the department in April 2018 to inform them of his new residential address.  At that time he was advised orally that his application for a protection visa had been refused.  He subsequently engaged a migration agent who lodged an FOI application on his behalf and received a copy of the refusal notification and decision on 17 May 2018.  The application lodged the application for review on 18 May 2018.

6. The applicant’s representative argues that the application for review is valid as it was made within 21 days of the applicant being notified of the decision to refuse his protection visa application.  It is submitted that because the notification and decision dispatched by post to the applicant on 1 May 2017 went to a non-existent postal address, the deemed notification provisions did not operate and the first notification failed.  It is submitted that the applicant was not re-notified until 17 May 2018 and his review application was therefore lodged in time.

7. Section 494B sets out the methods by which the Minister may give documents to a person. One of those methods is set out in s.494B(4) which provides that the Minister may date the document and then dispatch it within 3 working days by prepaid post to the last residential or business address provided to the Minister by the recipient for the purpose of receiving documents.

8. In this case the notification letter and decision dated 1 May 2017 were sent by pre-paid post on that date to [Address 1], Victoria, being the last residential address provided by the applicant to the Minister in his Form 866 (Application for a Protection Visa) and Form 80 (Personal Particulars for Assessment including Character Assessment). It is not suggested that the applicant notified the department of any change to his address from that given in his visa application until April 2018 and departmental records indicate he did not. Therefore the Tribunal is satisfied the documents were sent to the applicant at the address given by the applicant in compliance with s.494B(4).

9. While it is clear that delivery of the documents failed because the applicant had provided the department with an incomplete and therefore incorrect postal address, section 494C(4) provides that where the Minister gives a document to a person by dispatching the document by prepaid post to an address in Australia, the person is taken to have received the document 7 working days after the date of the document. Because the Minister’s delegate complied with s.494B(4), the documents are deemed to have been received by the applicant 7 working days after the date on those documents, which in this case was 1 May 2017.

10. I have considered the submission that once the documents were returned to the department marked “RTS – Insufficient address”, the department was on notice that the address provided by the applicant was incapable of meeting the requirements of s.494B and could have emailed the decision record to the applicant or called him to confirm his address. The Australian courts have held that where multiple alternate addresses are provided by an applicant (e.g. an email and residential address), the Minister may use any one of the methods of notification in s.494B.[1] The multiple alternate addresses do not comprise a list to be followed until actual notification has been achieved, rather the Minister is required only to send the notification on the visa decision by one of the methods specified in s.494B of the Act.[2] While it was open to the department to contact the applicant using some other means, its failure to do so does not invalidate the deemed notification by prepaid post under s.494C(4). I find that the applicant was notified of the decision in accordance with the statutory requirements.

    [1] Maroun v MIAC [2009] FMCA 535 (Driver FM, 23 July 2009) at [53] (undisturbed on appeal); Pathania v MIBP [2015] FCCA 932 (Judge Manousaridis, 16 April 2015) (upheld on appeal)

    [2] Nemuseso v MIAC [2010] FMCA 957 (Nicholls FM, 9 December 2010) at [73].

11. 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.

12. The Tribunal finds that the applicant is taken to have been notified of the decision on 10 May 2017: s.494C of the Act. Therefore the prescribed period to apply for review ended on 6 June 2017. The Tribunal has no power to extend time to lodge a valid review.

13. As the application for review was not received by the Tribunal until 18 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

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

    Alison Murphy
    Member