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

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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1814484 (Refugee)

Details

AGLC: 1814484 (Refugee) [2018] AATA 2833
Case: [2018] AATA 2833
Decision Date: 27 June 2018

CaseChat Overview and Summary

The applicant, a citizen of Pakistan, sought review of a decision concerning a protection visa. The dispute centred on whether the applicant had been validly notified of the Department's decision, and consequently, whether their application for review to the Tribunal was lodged within the statutory timeframe. The matter was heard by Alison Murphy, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether it possessed jurisdiction to hear the applicant's review. This question hinged on whether the applicant's application for review was made within the time prescribed by the relevant legislation, which in turn depended on whether the Department had complied with its notification obligations.

The Tribunal found that correspondence from the Department had been sent to the applicant's nominated address. Applying the statutory requirements, the Tribunal determined that notification was deemed to have occurred upon dispatch to that address, irrespective of whether the applicant actually received it. As the application for review was received by the Tribunal on 18 May 2018, which was outside the required timeframe following the deemed notification, the Tribunal concluded it lacked jurisdiction.

Consequently, the Tribunal made no substantive determination on the merits of the protection visa application, as it lacked the jurisdiction to do so.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 The Tribunal does not have jurisdiction in this matter.Alison MurphyMember

Ratio Decidendi

Legal Principle Established

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