1914699 (Refugee)

[2020] AATA 2059

1914699 (Refugee) [2020] AATA 2059 (26 April 2020)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1914699

COUNTRY OF REFERENCE:                   China

MEMBER:Frances Simmons

DATE OF DECISION:  26 April 2020

DATE CORRIGENDUM

SIGNED:28 June 2020

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

1.The date ‘8 March 2019’ in paragraph one should read ‘8 May 2019’.

Statement made on 28 June 2020 at 6:30 pm

Frances Simmons
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1914699

COUNTRY OF REFERENCE:                   China

MEMBER:Frances Simmons

DATE:26 April 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 26 April 2020 at 4:27pm

CATCHWORDS

REFUGEE – protection visa – China – review application out of time – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 65, 66, 494C
Migration Regulations 1994 (Cth), r 4.31

CASES

BMY18 v Minister for Home Affairs [2019] FCAFC 189
DFQ17 v Minister for Immigration [2019] FCAFC 64
Singh v Minister for Immigration [2020] FCAFC 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 8 March 2019 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 9 June 2019. 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 8 May 2019 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 30 March 2020 the Tribunal wrote to the applicant and invited him to comment on the validity of the application. The letter stated:

   On 8 October 2019 the Tribunal sent a letter inviting you to comment on the validity of your application. The Tribunal had formed the preliminary view that your application was not a valid application as it was not lodged within the relevant time limit.

   On 19 December 2019 the Tribunal sent a letter advising you of the court judgment, DFQ17 v Minister for Immigration [2019] FCAFC 64 (18 April 2019), which identified problems with the validity of the notification letter issued by the Department of Home Affairs for failing to clearly state the time period within which an application for review must be made. You were informed that in light of this judgment your case had been re-assessed and it appeared that the Tribunal had jurisdiction to accept your application.

   Since our last letter to you, there has been a further court judgment Singh v Minister for Immigration [2020] FCAFC 31 (28 February 2020). The notification letter issued to you by the Department of Home Affairs has been re-assessed following this judgment. It would appear that you were validly notified under the Migration Act 1958, with the consequence that your application for review was not valid as it was not lodged within the relevant time limit.

5. The applicant did not provide any comment on the validity of the application.

6. The Tribunal has considered whether the notification letter transmitted by email to the applicant on 8 May 2019 complied with the requirement that it state the time in which the application for review is to be made as required by s.66(2)(d)(ii) of the Act.

7. In Singh v Minister for Immigration [2020] FCAFC 31 (28 February 2020) the Full Federal Court held that the information provided in a notification letter met the standard of clarity required under s.66(2)(d)(ii) because the heading 'Receiving this letter' was clear and relevant and these words were clearly referable to the words 'taken to receive this letter' under the heading 'Review rights' (at [13]-[15] per Thawley J, with Flick and Bromwich JJ agreeing). This distinguished the letter in this case from those in DFQ17 v Minister for Immigration [2019] FCAFC 64 (18 April 2019) and BMY18 v Minister for Home Affairs [2019] FCAFC 189 (31 October 2019) which contained information about the deemed receipt of the letter under the heading 'Financial or case worker assistance' contributing to the confusing and misleading result in those letters.

8. Having viewed the notification letter in the current review, the Tribunal is satisfied that it is in substantially the same terms as the notification letter in Singh v Minister for Immigration [2020] FCAFC 31. It is dated 8 May 2019 and under the heading ‘Review Rights’, it advises the applicant that he is entitled to apply to the Tribunal for a merits review of the decision within the prescribed timeframe and that the timeframe commences on the day on which he is taken to have been notified of the decision and ends at the end of 28 days. On a different page and under a separate heading ‘Receiving this letter’ it states that as the letter was sent to the applicant by email, he is taken to have received it at the end of the day on which it was transmitted. The time in which an application for review may be made is clear. The Tribunal finds the notification letter dated 8 May 2019 states the time in which the application for review was to be made and complies with s.66(2)(d)(ii).

9. The Tribunal is therefore satisfied that the applicant was validly 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 8 May 2019:s.494C of the Act. Therefore the prescribed period to apply for review ended on 4 June 2019.

10. As the application for review was not received by the Tribunal until 9 June 2019 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

    DECISION

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

    Frances Simmons
    Member