1833661 (Refugee)

[2018] AATA 4971

1833661 (Refugee) [2018] AATA 4971 (3 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1833661

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Justin Meyer

DATE:3 December 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 03 December 2018 at 11:29am

CATCHWORDS
REFUGEE – Protection Visa – Malaysia – application lodged out of time – no jurisdiction

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 on 19 October 2018 to refuse to grant protection visas under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 16 November 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: 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 19 October 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The applicant wrote to the Tribunal as follows:

   “RE: COMMENT ON VALIDITY OF APPLICATIONS FOR REVIEW — [Applicant 1] AND [Applicant 2] CASE NO 1833661

   Referring to your attached letter from the email dated 19 November 2018, I would like to explain why the delayed happened in applying to the Administrative Appeal Tribunal.

   We are confused that during our application to the Department of Home Affair, we provide (2) two email address for communication method which is a) [Email address 1] and b) [Email address 2]. The Department of Home Affair communicates to us for "Acknowledgement of a valid application for a protection (subclass 866) visa dated 5th June 2018 using [email address 2] only. We take note that the immigration will communicate further using the same email address.

   However, when the Department of Home Affair communicates about IMMI Refusal Notification dated 19th Oct 2018, the email address [Email address 1] were used.

   When we realised that the Visa Entitlement Verification Online (VEVO) shows that we already had visa expiry date, we try to get the refusal letter from the Department of Home Affair. We called the Department of Home Affair on 14th November 2018 to inform that we did not receive the email.

   The officer via phone told that Department of Home Affair had sent email on 19th Oct 2018. We were told that we have to email to opvic.adminPhomeaffairs.gov.au to ask them to resend the email that we didn't receive. We called back on 15th November told that we still not received the email, however the officer [Mr A] [reply] to us asking us to provide name, client ID, passport no and date of birth in our email.

   In the afternoon of 15th November 2018, we call back to confirm that our email in the morning was received. During that time only the officer that replied to the called informed that the email was sent to email [Email address 1]. At that time we 1.st time open the email letter of refusal, We never receive a reply from the Department of Home Affair to resend back an email to [Email address 2] as we consider that is the main communication email.

   That is the reason why we submitted the application to AAT on 16t^h November 2018 after looking the refusal for the first time on 15^th November 2019,

   Herewith I enclose also the email communication Department of Home Affair request to email back to be resent to us but until today it is not been sent yet.

   Hopefully, our comment will be accepted by the member of MT to decide it is a valid application from us.”

5. These are no grounds for me finding that a valid application has been made. The applicants have been notified to one of the email addresses that they have provided to the Department. There is no evidence that the applicants told the Department to stop using it. One address seems to be for the first applicant and the second address seems to be for the second applicant. Both appear to have been operative.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 19 October 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 15 November 2018.

7. As the application for review was not received by the Tribunal until 16 November 2018 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Justin Meyer
   Member