1838115 (Refugee)

[2019] AATA 3746

1838115 (Refugee) [2019] AATA 3746 (18 February 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1838115

COUNTRY OF REFERENCE:                  India

MEMBER:Mireya Hyland

DATE OF DECISION:  18 February 2019

DATE CORRIGENDUM SIGNED:            19 February 2019

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

The date of decision stated on the decision cover page as “17 February 2019” is changed to read “18 February 2019”.

Mireya Hyland
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1838115

COUNTRY OF REFERENCE:                  India

MEMBER:Mireya Hyland

DATE:17 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 18 February 2019 at 1:20pm

CATCHWORDS

REFUGEE – protection visa – India – application lodged late – no discretion to extend prescribed period – taken to have received notice of the decision – no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), ss 24Z, 25, 29
Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth), r 4.31

CASES

Beni v Minister for Immigration and Border Protection [2018] FCAFC 228
Brown v Minister for Home Affairs (No. 2) [2018] FCA 1787
Hunter Valley Developments Pty Ltd v Cohen, Minister of Home Affairs and Environment (1984) 3 FCR 344

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 26 October 2018 to refuse to grant protection visas to the applicants, [Applicant 1] and [Applicant 2], under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 30 December 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. As [the applicants] were not in immigration detention on the day they were 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 applicants] were notified of the decision by letter dated 26 October 2018 and dispatched by email. The Tribunal is satisfied that they were notified of the decision in accordance with the statutory requirements.

4. The Tribunal finds that [the applicants] are taken to have been notified of the decision on 26 October 2018: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 22 November 2018.

5. On 14 January 2019 the Tribunal wrote to [the applicants] inviting them to comment on the validity of their application for review by 29 January 2019. On 29 January 2019 the Tribunal received a submission together with an application form for an extension of time under s.29 of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

6. In his submission [Applicant 1] explained that, although the Department of Home Affairs had sent them several emails, including the email on 26 October 2018 notifying them of the delegate’s decision, those emails had gone into [Applicant 1’s] ‘junk folder’ instead of the email inbox. Therefore, [the applicants] were unaware of the delegate’s decision until 23 December 2018. Citing the principles set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister of Home Affairs and Environment (1984) 3 FCR 344 at 348 for when a discretion to extend time for making an application should be exercised, he requested that the Tribunal find that it has jurisdiction in this matter despite the application being lodged after 22 November 2018.

7. It is true that in November 2018, the Federal Court of Australia held that, by virtue of s.24Z(2) and s.25(6) of the AAT Act, the power to extend time contained in s.29(7)-(10) of that Act was available to the Migration and Refugee Division of the Tribunal: see Brown v Minister for Home Affairs (No. 2) [2018] FCA 1787. However, on 14 December 2018, the Full Federal Court overturned that decision, finding that Brown No. 2 was wrongly decided and should not be followed: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 per McKerracher, Reeves and Thawley JJ at [83]. Subsections 29(7)-(10) of the AAT Act do not apply to this Division of the Tribunal by virtue of s.24Z, and no part of s.25 or any other section of the AAT Act, has the effect of applying s.29 to its proceedings under Part 5 or Part 7 of the Act.

8. The application form for an extension of time under s.29(10) of the AAT Act submitted by [Applicant 1] clearly states that it is for use in the Tribunal’s General, Freedom of Information, National Disability Insurance Scheme, Security, Taxation and Commercial, and Veterans’ Appeals Divisions. The Tribunal constituted to consider a matter in the Migration and Refugee Division does not have any discretion to extend the prescribed period for making a valid review application. [Applicant 1], in his submission, did not claim, and there is no evidence before the Tribunal to indicate, that the Department of Home Affairs did not send the notification to the correct email address. [Applicant 1] only claimed that the email was in his ‘junk folder’ so he did not see the notification. Section 494C(5) of the Act deems that [the applicants] are taken to have received the notice of the decision at the end of the day on which the document was transmitted, being 26 October 2018. This is so even if the document was never, in fact, received.

9. Although the Tribunal feels for [the applicants], because the application for review was not received by the Tribunal until 30 December 2018 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

    Mireya Hyland
    Member