1902799 (Refugee)
[2019] AATA 774
•7 March 2019
1902799 (Refugee) [2019] AATA 774 (7 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1902799
COUNTRY OF REFERENCE: Malaysia
MEMBER:David McCulloch
DATE:7 March 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal does not have jurisdiction in this matter.
Statement made on 07 March 2019 at 3:58pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – Application made out of time – primary decision emailed to applicant – no access to email – No jurisdictionLEGISLATION
Migration Act 1958 (Cth), ss 65, 494B, 494C
Migration Regulations 1994 (Cth), r 4.31CASES
Maroun v MIAC [2009] FMCA 535
SZKTR v MIAC [2007] FMCA 1447Any 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 29 August 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 7 February 2019. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
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.
The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 29 August 2017 and dispatched by email.
The Tribunal wrote to the applicant on 13 February 2019 indicating that, based on the primary decision having been emailed to the applicant on 29 August 2017 that 29 August 2017 was the day on which the applicant was taken to have been notified of the decision. On that basis, the last day for lodging the application for review was 25 September 2017. As the application was not received until 7 February 2019 it appeared to be out of time. The applicant was given the opportunity to respond to this preliminary view of the Tribunal.
The applicant responded in writing on 27 February 2019. In response, the applicant indicates that the Department should have notified of the refusal by registered mail and not by email. The applicant indicated that he could not access his email in the relevant period due to a password problem.
Where the Minister is required, or elects, to use one of the methods in s.494B, the notification will, unless it is being handed directly to the recipient, need to be delivered, dispatched or transmitted to an address, fax number or email address ‘provided to the Minister … for the purposes of receiving documents’.
Government systems (ICSE) indicate that the applicant provided to the Department for contact details both a physical residential address and an email address. Where multiple alternate addresses are provided by an applicant, any one of the notification methods specified in s.494B may be used.[1]
[1] Maroun v MIAC [2009] FMCA 535 (Driver FM, 23 July 2009) at [53] (undisturbed on appeal); and SZKTR v MIAC [2007] FMCA 1447 (Driver FM, 21 August 2007).
The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
The Tribunal finds that the applicant is taken to have been notified of the decision on 29 August 2017: s.494C of the Act. Therefore the prescribed period to apply for review ended on 25 September 2017.
As the application for review was not received by the Tribunal until 7 February 2019 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.
David McCulloch
Member
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