1831830 (Refugee)

[2019] AATA 1226

1831830 (Refugee) [2019] AATA 1226 (8 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1831830

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Denise Connolly

DATE:8 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 08 January 2019 at 4:12pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – notification of decision – application review lodged out of time – no power to grant extension or review –Tribunal has no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 494

Migration Regulations 1994, schedule 2

CASES

Beni v MIBP [2018] FCAFC 228

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 February 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 30 October 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 24 February 2017, dispatched by post. Having regard to the address provided to the Department by the applicant the Tribunal is satisfied the letter was addressed to the last postal address provided to the Department in connection with the visa application.  The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

3. 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 Regulations1994 (the Regulations).

4. The primary decision was posted to the applicant on 24 February 2017. The Tribunal finds that the applicant is taken to have been notified of the decision on 7 March 2017: s.494C of the Act. Therefore the prescribed period to apply for review ended on 3 April 2017.

5. The Tribunal wrote to the applicant on 1 November 2018, advising that it had formed the preliminary view that the review application was not valid, as it was not lodged within the prescribed period. The applicant responded on 27 November 2018, advising that she had made the visa application on 23 September 2015. The delegate refused the application on 24 February 2017 however she did not receive the notification of decision. She acknowledges that a registered letter containing the decision was sent to her address but she was not home to collect the letter. She has been advised by Australia Post that a card would have been left in her mail box advising her to attend the post office to collect the letter. She denies receiving the card. When she made the visa application she was advised it would take some time for a decision to be made. After no news she contacted the Department only to be advised that the decision had been made and a letter sent advising the application was refused. She made an FOI application and found that the decision letter had been returned to sender. Had she known the decision had been made she would have applied to the Tribunal on time as she had spent money to make the application which is important to her future. She was unaware that the last day for the application to be made was 3 April 2017. She lodged her application as soon as she discovered the mistake. The circumstances were beyond her control. She requested that the Tribunal accept her application.

6. The Tribunal has taken into account the applicant’s claim that she was unaware of the decision because she did not receive the card advising her to attend the post office to collect the letter. Having regard to material on the Department’s file it accepts that the notification letter was returned to the Department marked ‘unclaimed’. However that the applicant did not actually receive the decision of the delegate until October 2018 is of no legal consequence. This is because s 494C(4) of Act has the effect of deeming receipt of a document that has been dispatched in accordance with s 494B(4), even if, as in the circumstance of this case, the document is ‘returned to sender’.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 7 March 2017: s.494C of the Act. Therefore the prescribed period to apply for review ended on 3 April 2017. The Tribunal has no power to grant an extension of time, or to conduct a review where a review application has not been received within the prescribed period. The Full Federal Court recently determined in Beni v MIBP [2018] FCAFC 228 that the Tribunal does not have the power to extend time for making an application for review to the Tribunal’s Migration and Review Division. As a result, review applications must be lodged within the timeframes prescribed in the Regulations in order to be valid.

8. As the application for review was not received by the Tribunal until 30 October 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.

   Denise Connolly
   Member