1823463 (Refugee)

[2018] AATA 4364

1823463 (Refugee) [2018] AATA 4364 (3 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1823463

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Jason Pennell

DATE:3 September 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 3 September 2018 at 4.32pm

CATCHWORDS
REFUGEE – Protection visa – Vietnam – review application out of time – primary decision notified by email – no jurisdiction

LEGISLATION
Migration Act 1958, ss 65, 494C
Migration Regulations 1994, rr 2.55, 4.31

CATCHWORDS
Kim v Minister for Immigration and Multicultural Affairs [2006] FCAFC 64
Maroun v Minister for Immigration and Citizenship [2009] FCA 1284
Minister for Immigration and Citizenship v Manaf [2009] FCA 963
Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86
Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172

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 24 November 2017 to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 14 August 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.[1]

[1] r.4.31(2) of the Migration Regulations 1994

3.    The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 24 November 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4.    By a letter dated 16 August 2018 the Tribunal advised the applicant that his application was not valid as it had not been made within the relevant time limits. The Tribunal invited the applicant to comment in writing by 30 August 2018 as to whether a valid application had been made. By an email dated 30 August 2018 from [the] agent for the applicant, the applicant confirmed that he was notified of the decision by letter dated 24 November 2017 which was sent by email. However, the applicant says that he requested the decision be sent to him by mail.  

5.    Section 494B of the Act specifies the alternative methods in which the Minister may give a document to a person. Section 494B(5)(b) states that the Minister may transmit a document by email. The words ‘transmitting the document’ in the section relates to the sending of the document and does not imply that actual communication must occur.[2] Therefore, the relevant consideration is when the document is sent and not when the applicant became aware of the decision.[3] The applicant had agreed to the department being able to communicate with him by email[4] and accordingly provided his agents email address. As such, the letter enclosing the delegate’s decision was sent to the email address as provided in the application form.[5] 

[2] Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86 per Jacobson J @ [41].

[3] OpCit per Jacobson J @ [41].

[4] Maroun v Minister for Immigration and Citizenship [2009]FCA 1284 per Flick J @[33]

[5] Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86.

6.    Section 494C of the Act deal when a person is taken to have received a document. Under this section a person is deemed to have received a document regardless of what events actually transpire. Section 494C is a deeming provision that does not create any rebuttable presumption that notification has occurred.[6] Rather the section provides that in certain circumstances a person is taken to have received the document.[7] Accordingly the Tribunal cannot inquire as whether the applicant has or has not received the document.[8] 

[6] Minister for Immigration and Citizenship v Manaf [2009] FCA 963 @ [21].

[7] Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 @ [13]

[8] Kim v Minister for Immigration and Multicultural Affairs [2006] FCAFC 64 @ [8]

7.    Accordingly, the Tribunal finds that the applicant is taken to have been notified of the decision on 24 November 2017.[9] Therefore, the prescribed period to apply for review ended on 21 December 2017.

[9] s.494C of the Act or r.2.55 of the Regulations

8.    The application for review was therefore not received by the Tribunal until 14 August 2018. Accordingly, 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.

Jason Pennell

Member