1922551 (Refugee)

[2020] AATA 3081

1922551 (Refugee) [2020] AATA 3081 (1 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1922551

COUNTRY OF REFERENCE:                   China

MEMBER:Brendan Darcy

DATE:1 April 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 01 April 2020 at 12:54pm

CATCHWORDS
REFUGEE – protection visa – China – review application lodged out of time – departmental notification issued in accordance with legislation – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 494C, 66(2)(d)(ii)

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

CASES

BMY18 v MHA [2019] FCAFC 189

DZAFH v Minister for Immigration [2017] FCCA 387

DFQ17 v MIBP [2019] FCAFC 64

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 12 July 2019 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 14 August 2019. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. As the applicants was not in immigration detention on the day the applicants 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 17 July 2019 and dispatched by email. The Tribunal is satisfied that the applicants were notified of the decision in accordance with the statutory requirements.

4. On 19 December 2019, the Tribunal emailed the applicants to invite comment on the validity of this review application and to do so, in writing, by 2 January 2020. On 2 January 2020, the first named applicant requested an extension of time to respond to the invitation to comment. This was granted up to and including 29 January 2020.

5. In an email dated 29 January 2020, the applicants responded. The applicants claimed that there were three reasons that the applicants had validly applied for review.

6. First, the applicants claimed the phrasing ‘at the end of the day’ contained in the notification letter was defective as it was unclear on which day the letter was considered received.

7. Second, the applicants claimed the notification letter with the decision record attached did not fulfil the obligations under s.66 of the Migration Act which requires the delegate to provide the time in which the application for review may be made. As the notification letter failed to do so, it was defective.

8. Third, the applicants noted the authority of DZAFH v Minister (referred to in the letter inviting the applicants to comment) and stated that this authority did not relieve the Department in its duty to state the laast date for the prescribed period. 

9. Pursuant to r.4.31(2) of the Regulations, the period in which an application for review of a Part 7 reviewable decision must be given to the Tribunal is 7 working days, commencing on the day the applicant is notified of the decision. In DZAFH v Minister for Immigration [2017] FCCA 387, the Federal Circuit Court held that the prescribed period in r.4.31 commences on, and includes, the day the applicant is taken to have been notified of the decision

10. The Tribunal finds that the applicants are taken to have been notified of the decision on 17 July 2019: s.494C of the Act. Therefore the prescribed period to apply for review ended on 13 August 2019.

11. The Tribunal acknowledges the application was received only one day late. However the Tribunal has no power to extend the time to lodge a valid application.

12. With regards to claims about defective notification, the obligation in s.66(2)(d)(ii) to state the time in which the review application may be made requires that it be conveyed in a complete and clear manner.[1] While it does not require specification of the actual date by which an application must be lodged, it must provide complete information that clearly discloses to the review applicant when the review application has to be lodged. For instance, a statement of the date at which the time to apply expires may suffice.[2] Further, it is not necessary that the notification include the terms of s.494B of the Migration Act, or that if posted, an explanation of the requirement that it be dispatched within 3 working days of the letter.[3]

    [1] DFQ17 v MIBP [2019] FCAFC 64 (Rares, Perram and Farrell JJ, 18 April 2019).

    [2] Cao v MIAC (2009) 176 FCR 396. Also see, Cao v MIAC [2009] FMCA 70 (Cameron FM, 10 February 2009); SZNFB v MIAC [2009] FMCA 514 (Nicholls FM, 29 May 2009); Khan v MIAC [2007] FMCA 419 (Scarlett FM, 12 March 2007); Milon v MIAC [2009] FMCA 85 (Emmett FM, 13 February 2009); and Benissa v MIAC [2010] FMCA 657 (Riley FM, 3 August 2010).

    [3] Milon v MIAC [2009] FMCA 85 (Emmett FM, 13 February 2009) at [18] and [25].

13. In DFQ17 v MIBP[4] the Full Federal Court found a notification letter that was posted, failed to state the information in s.66(2)(d)(ii) about the time in which a review application may be made, in circumstances where the information was set out across three pages under different headings in the letter (the date of the notification, the time the appellant was taken to have received the notification and the prescribed period).[5] The Court concluded the notification letter was defective as it was ‘piecemeal, entirely obscure and completely incomprehensible’, with the result that it failed to convey that any review application had to be made by the relevant date.[6]

    [4] DFQ17 v MIBP [2019] FCAFC 64 (Rares, Perram and Farrell JJ, 18 April 2019).

    [5] In order to determine the time in which to lodge a review application the appellant was required to note three separate pieces of information namely the date of the notification letter; the date of deemed receipt i.e. that she was taken to have received the letter 7 working days after the date of that letter; and that the review application had to made within 28 calendar days commencing on the day of deemed receipt, therefore requiring double-counting of 14 February 2017 (day of deemed receipt) in order to calculate that 13 March 2017 was the last day to lodge the review application.

    [6] DFQ17 v MIBP [2019] FCAFC 64 (Rares, Perram and Farrell JJ, 18 April 2019) at [62].

14. In BMY18 v MHA[7] the Full Federal Court considered the validity of a number of types of notification letters in light of the problems identified in DFQ17 v MIBP. In respect of valid notifications, BMY18 v MHA confirmed that where all the information required to determine the time period to make a review application (i.e. the prescribed period and when the applicant is taken to have received the notification) is contained under an appropriately titled heading such as ‘Review Rights’, the notification will be valid (irrespective of whether it was sent by post or email for both Part 5 and Part 7 matters).[8]

    [7] BMY18 v MHA [2019] FCAFC 189 (Reeves, Perram and Charlesworth JJ, 31 October 2019).

    [8] BMY18 v MHA [2019] FCAFC 189 (Reeves, Perram and Charlesworth JJ, 31 October 2019) at [17]-[19].

15. Having examined the notification of the refusal decision issued by the Department on 17 July 2019 and with the abovementioned caselaw in mind, the Tribunal is satisfied the notification about the prescribed timeframes was not piecemeal, obscure or incomprehensible. The notification letter clearly states the letter is taken to be received ‘at the end of the day the letter was transmitted’. That was not ambiguous or obscure. The Tribunal does not accept the Department was obliged to provide the precise or actual date for the last day of the prescribed period for a valid review application or that it was required under s.66 of the Act. Furthermore this is not supported by the existing relevant caselaw at the time of making this decision.

16. The Tribunal is satisfied the notification letter issued by the Department was not defective. It was, in fact, issued in accordance with s.66 of Act.

17. As the application for review was not received by the Tribunal until 14 August 2019 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

    DECISION

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

    Brendan Darcy
    Member