1917414 (Refugee)

[2020] AATA 1585

1917414 (Refugee) [2020] AATA 1585 (4 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1917414

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:David McCulloch

DATE:4 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 04 May 2020 at 9:02am

CATCHWORDS

REFUGEE – protection visa – Malaysia – application lodged out of time – validity of department’s notification letter failing to state time period clearly – Full Federal Court decision on validity binding on tribunal – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 65, 494C

Migration Regulations 1994 (Cth), r 4.31(2)

CASE

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 30 May 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 28 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 30 May 2019 and dispatched by email.

4. The Tribunal wrote to the applicant on 24 October 2019 indicating that, based on the primary decision being email to the applicant on 30 May 2019 that 30 May 2019 was the date 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 26 June 2019. As the application was not received until 28 June 2019 it appeared to be out of time. The applicant was given the opportunity to respond to this preliminary view of the Tribunal.

5. In response the applicant referred to a judicial decision which identified problems with the validity of the notification letter issued by the Department for failing to clearly state the time period within which the application for review must be made. On that basis the applicant hopes that the application for review will be accepted by the Tribunal.

6. On 18 November 2019 the Tribunal again wrote to the applicant that recent court judgments had identified problems with the validity of the notification letter issued by the Department of Home Affairs in relation to not clearly stating the time period within which an application for review must be made. On that basis, the Tribunal reassessed the matter and determined that it did have jurisdiction in the matter.

7. The Tribunal then wrote to the applicant again on 26 March 2020 noting a further court judgment, a decision of the Full Federal Court in Singh v Minister for Immigration [2020] FCAFC 31 (28 February 2020). On the basis of that decision the matter had been reassessed again and it would appear that the applicant had been properly notified of the primary decision. The consequence of that would be that the application for review was not a valid application as it was not lodged within the relevant time limit. The applicant was given the opportunity to respond.

8. The applicant did not respond.

9. The Federal Court decision cited by the applicant provides obiter (not binding) comments indicating that a notification letter of the type provided to the applicant is not sufficiently clear and therefore does not constitute acceptable notification. However, this decision is reassessed in Singh v Minister for Immigration [2020] FCAFC 31 (28 February 2020) and overturns the findings in previous decisions concerning the validity of the notice in question in this matter. Singh is directly on point and binding on the Tribunal.

10. Given this judicial decision the Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

11. The finds that the applicant is taken to have been notified of the decision on 30 May 2019: s.494C of the Act. Therefore the prescribed period to apply for review ended on 26 June 2019.

12. As the application for review was not received by the Tribunal until 28 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

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

    David McCulloch
    Member