2008139 (Refugee)

[2021] AATA 5677

2008139 (Refugee) [2021] AATA 5677 (21 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2008139

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Mary Sheargold

DATE:21 June 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 21 June 2021 at 8:34pm

CATCHWORDS
REFUGEE – protection visa – Thailand – application made more than 28 days after notification of department’s decision – reliance on unlicenced person who submitted visa application and had access to email address – person made first review application without applicants’ knowledge – first tribunal found no jurisdiction to review – address provided to department in connection with application – error in email address in application form – notification to that address valid, notwithstanding it was incorrect – no jurisdiction

LEGISLATION

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

Migration Regulations 1994 (Cth), r 4.31

CASE

Cheng v MIAC (2011) 198 FCR 559

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 28 June 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 11 May 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 28 June 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The applicants’ registered migration agent, Paul O’Connor, wrote to the Tribunal by letter dated 7 May 2020 in support of the application lodged on 11 May 2020.  Mr O’Connor submits, in summary, that:

   ·the applicants had not “knowingly received any communication from Immigration regarding the refusal”;

   ·a third party identified as “[Mr A]” had access to the email address where the notification was sent;

   ·“[Mr A]” is not “a licensed person” and therefore has submitted the visa applications for the applicants “illegally” and given them immigration advice “illegally”;

   ·an earlier appeal application to the Tribunal was made without the applicants’ knowledge; and

   ·the applicants do not speak English and have limited education, and were totally reliant on “[Mr A]”, whom they paid $1,500, in respect of this application.

5. On 13 May 2020, the Tribunal wrote to the applicants inviting them to comment on the validity of their application, noting that it appeared that an application for review of the same delegate’s decision had been made to the Tribunal on 1 December 2019, and that on 20 February 2020, the Tribunal had found that it had no jurisdiction to conduct a review.  The applicants were invited to comment in writing by 27 May 2020.

6. On 27 May 2020, Mr O’Connor provided the Tribunal with further written submissions dated 26 May 2020, and a signed but undated statutory declaration of the first named applicant.  The first named declares that the applicants believed they could rely on “[Mr A]” to make the application on their behalf, and that “[Mr A]” had prepared a Gmail address for the applicants for the purpose of this application.  The first named applicant declares that on the advice of Mr O’Connor on 21 April 2020, they contacted “[Mr A]” seeking the password for the Gmail account.  Once “[Mr A]” had provided the applicants with the password, they discovered the notification.

7. Mr O’Connor submits that the Gmail address for correspondence was created by “[Mr A]” “illegally”, and that the applicants had never held an email address prior to the one connected to this application.  Mr O’Connor submits that his clients did not receive any notification of the original decision to refuse the application and therefore requests the notification be reissued and sent to him as their authorised recipient for this application.  Mr O’Connor notes that “[Mr A]” is an “unlicensed person who was not an exempt person and as such has placed the applicants at risk.”  Mr O’Connor submits that “[Mr A]” may be linked to another Thai person who previously provided advice to Thai nationals applying for visas in Australia before fleeing to Thailand following an investigation by the Australian Border Force.

8. Mr O’Connor also makes submissions that the email address listed on the notification letter is incorrect because the first letter is capitalised when it should not be, and requests that the notice of refusal be reissued to his email address “to allow my client the right of appeal and correct notification of the decision under s.494”.  The Tribunal has reviewed the application made to the Department for the visa and notes that in the application form, the first letter is capitalised.  The Tribunal notes that in Cheng v MIAC (2011) 198 FCR 559, the Court found that the notice of the delegate’s decision was sent to the address provided in the visa application, notwithstanding that it was not in fact the correct address,[1] and therefore the notification was valid.

   [1] The Court held the Department’s letter was sent in accordance with s 494B, that is, to the last residential address provided by the applicant and that there was no merit in the claim that the address was not provided by the applicant but by someone who assisted him with his application form.

9. The Tribunal has carefully considered Mr O’Connor’s submissions dated both 7 May 2020 and 27 May 2020.  While the Tribunal notes its sympathy for the applicants’ position and their reliance on “[Mr A]” in making this application, it does not have the power to direct the Department to reissue the notification of the decision.  Based on the evidence before it, the Tribunal finds that the notification letter dated 28 June 2018 was sent to the address for correspondence provided to the Department in connection with the application, and meets the requirements of s.494C(5) of the Act.

10. The Tribunal finds that the applicant is taken to have been notified of the decision on 28 June 2018: s.494C(5) of the Act.  Therefore, the prescribed period to apply for review ended on 25 July 2018.

11. As the application for review was not received by the Tribunal until 11 May 2020 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

    DECISION

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

    Mary Sheargold
    Member