2005562 (Refugee)

[2020] AATA 4172

2005562 (Refugee) [2020] AATA 4172 (14 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2005562

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Cathrine Burnett-Wake

DATE:14 August 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 14 August 2020 at 12:06pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 66, 494C
Migration Regulations 1994, rr 2.16, 2.55, 4.31

CASES

Chidbundid v MIAC [2012] FMCA 59
DZAFH v Minister for Immigration [2017] FCCA 387

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 13 February 2020 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 19 March 2020. 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 13 February 2020 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 6 April 2020, the Tribunal sent a natural justice letter to the application requesting comment on the validity of the application. The letter outlined that it appeared that the application is not a valid application as it was not lodged within the relevant time limit. Further, that pursuant to r.4.31(2) of the Migration Regulations 1994, the period in which an application for review of a Part 7-reviewable decision must be given to the Tribunal is 28 days, commencing on the day the applicant is notified of the decision. And that 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: at [44] – [46]. The Tribunal noted that the primary decision was emailed to the applicant on 13 February 2020 meaning that 13 February 2020 was the date on which he was taken to have been notified. As such, in accordance with DZAFH, the last day for lodging the application for review was 11 March 2020. And as the application was not received until 19 March 2020, it appeared to be out of time.

5. On 6 April 2020, the applicant’s representative responded on his behalf. The representative’s submission concedes that the application is out of time based on notification of the decision if received on 13 February 2020. However, the submission details their instructions were the applicant never received, from the Department, a notification of refusal and its record decision via email to [the applicant’s email address] on 13 February 2020 and that the first time he received notification was 19 March 2020. The Tribunal notes that the submission also states the applicant had previously successfully received correspondence from the Department to this email address. The submission also details that the applicant had been checking his email daily and that he believes that there has been no problem with his email for receiving and sending correspondence to other parties including the Department. The submission also contends that although email is a convenient method of communication it has caused the applicant an unfair disadvantage and negatively impacted on his right for a review. The submission further contended that if a refusal notification by the Department or any serious correspondence that requires attention with a deadline, by law, had been posted to the visa applicant via registered mail the applicant’s natural justice or procedural fairness would have been preserved.

6. Section 66(1) of the Migration Act and reg 2.16(3) of the regulations require the Minister to notify the applicant of a decision to refuse a visa by one of the methods specified in s 494B of the Migration Act. Email notification is a method specified: s 494B(5). The Tribunal rejects the representative’s contention that the ‘natural justice or procedural fairness’ would have been preserved if the applicant was alternatively sent notification via ‘registered post’. The Act and regulations clearly allow notification of a decision to occur via electronic means. The evidence before the Tribunal is the Department sent the notification via email, therefore, discharged its obligations of notification by a correct method.

7. The Tribunal notes the applicant’s claim that he never received the Department’s email on 13 February 2020 to his email address of [email address]. The Tribunal has reviewed the Department file and is satisfied that [this email address] is the last email address known to the Minister.[1] Therefore, it was the correct email address for the purpose of notification.

   [1] Regulation 2.55(3)(d).

8. Relevant to the Tribunal’s considerations and the claim put forward in the representative’s submission that the applicant did not receive the notification from the Department on 13 February 2020, in Chidbundid v MIAC[2] where the applicant contented he did not receive notification of his cancellation decision by email as the email was never received on Hotmail’s server, the Court held that the deeming provision in reg 2.55(8) operates to deem receipt of an email sent to the last email address known to the Minister regardless of whether or not actual receipt is proved to have occurred.

   [2] Chidbundid v MIAC [2012] FMCA 59.

9. The Tribunal finds that the applicant is taken to have been notified of the decision on 13 February 2020: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 11 March 2020.

10. As the application for review was not received by the Tribunal until 19 March 2020 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.

    Cathrine Burnett-Wake
    Member