2100329 (Refugee)

[2021] AATA 3009

2100329 (Refugee) [2021] AATA 3009 (30 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2100329

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Phoebe Dunn

DATE:30 June 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 30 June 2021 at 12:10pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – review application out of time – repeat review application – no Tribunal-reviewable decision – Department re-notified refusal decision – no jurisdiction

LEGISLATION

Acts Interpretation Act 1901, s 36
Migration Act 1958, ss 65, 66, 412, 494
Migration Regulations 1994, rr 2.16, 4.31

CASES

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 dependants.

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 22 March 2017 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 11 January 2021. 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 19 November 2019 and dispatched by post. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. The  Tribunal notes that the notification of the decision by letter dated 19 November 2019 was a renotification as the original notification made on 22 March 2017 was deemed defective by the Department.

4. By letter dated 22 January 2021, an officer of the Tribunal wrote to the applicant inviting the applicant to comment in writing by 5 February 2021 on the Tribunal’s preliminary view that the application was not a valid application as it was not lodged within the relevant time limit. 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. 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: at [44] – [46]. The Tribunal noted in its letter that the primary decision was re-sent by post to the applicant on 19 November 2019 meaning that 28 November 2019 was the date on which the applicant was taken to have been notified. As such, and in accordance with DZAFH, the Tribunal noted that the last day for lodging the application for review was 27 December 2019 and as the application was not received until 11 January 2021, it appears to be out of time, noting that this was a matter to be determined by a Tribunal Member. In its letter, the Tribunal also noted that it appeared that the application was a repeat application of the same delegate’s decision that  was previously made to the Tribunal on 23 July 2020 (Tribunal file 2011975) and that the Tribunal had made a decision on that application on 2 October 2020, finding that the application was not a valid application and that it did not have jurisdiction to conduct a review. 

5. In its letter, the Tribunal noted that when the applicant re-applied for review it had received detailed submissions from a lawyer who appeared to be providing the applicant with migration assistance but is not currently appointed to the applicant’s case. In essence these submissions claim that the Department’s notification of the refusal was not validly notified and therefore that your application for review is valid.

6. In response, the applicant attached a copy of a letter from the applicant’s lawyer dated which makes the following claims:

   a.[The applicant] was first notified of the Department’s decision of 22 March 2017 for the first time on 15 December 2020, when the Tribunal emailed a copy to him. Before this, he had not been correctly notified of the Department’s decision – either when it was first made in 2017, or when the Department purported to re-notify him on 19 November 2019. That the applicant did not receive the Department’s correspondence of 19 November 2019 is confirmed by the entry made on the Department’s ICSE records on 20 November 2019, indicating the correspondence had been ‘returned to sender’ (or RTS);

   b.As at 19 November 2019, [the applicant’s] last recorded address with the Department was not [Address 1]. We are instructed that that address was provided in [the applicant’s] initial Protection visa application made on 23 December 2016. However, that address was superseded in the Department’s records by multiple further addresses, provided with [the applicant’s] successive Bridging E visa applications made during 2019. [The applicant] instructs that, at 19 November 2019, he was living at [Address 2] – the address which he also provided to the Tribunal in his review application of 23 July 2020. He further instructs that he had provided the Department with this address in his previous Bridging E visa applications;

   c.Pursuant to s 412(1)(b) of the Migration Act 1958 (the Act), an application for review must be given to the Tribunal, in relation to a decision reviewable under Part 7, within a prescribed period no later than 28 days after notification of that decision. Notification of a decision takes place in accordance with s 66 of the Act. According to s 66(1) the Minister must notify an applicant of the decision to refuse a visa application in a prescribed way which, as set out at subreg 2.16(3) of the Migration Regulations 1994 (the Regulations), must be by one of the methods specified under s 494B of the Act. In accordance with s 494B(4), the Minister may notify an applicant of a decision to refuse their visa application by delivering correspondence by pre-paid post to ‘the last address for service provided to the Minister by the recipient for the purposes of receiving documents.’

   d.In this case, the Department’s correspondence of 19 November 2019 was not sent to the last address provided by [the applicant] for correspondence and thus did not comply with the requirements of s 494B and was not sent in the prescribed way required by s 66(1) of the Act. In other words, [the applicant] was not effectively notified of the Department’s decision by its correspondence of 19 December 2019, as required by s 66 of the Act. Accordingly, the prescribed period within which to seek review of the decision set out at s 412(1)(b) did not commence;

   e.We note that, in accordance with s 494C(7), if the Minister purports to send correspondence by one of the methods at s 494B but makes an error in doing so, but the applicant later received a copy of the correspondence, then the applicant is deemed to have received it at that later date. As noted above, [the applicant] received a copy of the Department’s correspondence by email from the Tribunal’s registry staff on 15 December 2020. In accordance with s 494C(7), the Minister is deemed to have complied with the requirement of s 494B on that date, and accordingly with the requirements of s 66(1); and

   f.This application for review is made within 28 days of effective notification to [the applicant] of the decision to refuse his Protection visa application (ie 15 December 2020), as required by s 412(1)(b) and r 4.31(2). Accordingly, this is a valid application for review and must be assessed by the Tribunal as such.

7. The Tribunal has carefully considered the applicant’s submissions but is satisfied on the evidence before it that the applicant was taken to be re-notified of the Department’s decision on 28 November 2019.  A search of the Departmental ICSE records for the applicant shows that at the time the Department sent the re-notification on 19 November 2019, the applicant’s address for the purposes of receiving documents (pursuant to s 494(B)(4) of the Act), was the address listed in the applicant’s Subclass 866 Protection visa application, being [Address 1].  The Tribunal notes further that the applicant’s address for the purpose of receiving documents was subsequently updated in the Departmental records on 5 May 2020, 25 May 2020, 23 June 2020 and 24 July 2020.  There is no evidence before the Tribunal of the applicant updating his address for the purposes of receiving documents under s 494(B)(4) prior to 5 May 2020 and no evidence of receipt of Bridging visa E applications in 2019 as claimed by the applicant.  As such, it appears that the applicant’s address for the purposes of receiving documents under s 494(B)(4) was the address to which the Department sent the re-notification of the Department’s decision on 19 November 2019.  The Tribunal also observes that Departmental records show that the Department made attempts to contact the applicant to contact that applicant to seek updated contact details to no avail.

8. As such, the Tribunal finds that the applicant is taken to have been notified of the decision on 28 November 2019: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 25 December 2019.

9. As the last day of the prescribed period fell on a public holiday, being Christmas Day, the applicant had until the end of the next day that was not a Saturday, a Sunday or a holiday to lodge his or her application, i.e. until 27 December 2019: s.36(2) of the Acts Interpretation Act 1901.

10. As the application for review was not received by the Tribunal until 11 January 2021 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

11. In its letter dated 22 January 2021, the Tribunal also noted that it appeared that the application was a repeat application of the same delegate’s decision that was previously made to the Tribunal on 23 July 2020 (Tribunal file 2011975) and that the Tribunal had made a decision on that application on 2 October 2020, finding that the application was not a valid application and that it did not have jurisdiction to conduct a review. Following careful consideration of the information before it, the Tribunal is also satisfied that the application for review currently before the Tribunal is for review of the decision of the delegate dated 22 March 2017 in respect of which the Tribunal has already received a review application and undertaken its statutory duty to review the decision under the Act.  As the delegate’s decision has already been the subject of a valid review by the Tribunal, the Tribunal finds that it is no longer a reviewable decision.

12. Accordingly, as indicated in the Tribunal’s letter to the applicant dated 22 January 2021, if the Tribunal receives any further documentation that appears to seek review of the same delegate’s decision, it will not treat it as a new application for review. It will not allocate a new case number or ask the applicant to comment on the validity of any purported review application and it will not make a further decision about whether it has jurisdiction to review that decision. The Tribunal will instead advise the applicant that the Tribunal cannot consider this case further.

    DECISION

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

    Phoebe Dunn
    Member