2106425 (Refugee)

[2021] AATA 3388

2106425 (Refugee) [2021] AATA 3388 (9 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2106425

COUNTRY OF REFERENCE:                   India

MEMBER:Anne Grant

DATE:9 July 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 09 July 2021 at 4:50pm

CATCHWORDS
REFUGEE – protection visa – India – application made more than 28 days after notification of department’s refusal decision – notification sent to address on application – agent’s response that applicant’s ‘primary email address’ different from one on application – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth), r 4.31

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 8 April 2021 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 14 May 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 8 April 2021 and dispatched by email to the email address provided by the applicant in his application for protection. 

4. According to s.494C of the Act, where a document is given to a person by email, the applicant is taken to have received the document at the end of the day on which the document is transmitted.  The Tribunal finds that the applicant is taken to have been notified of the decision on 8 April 2021.  The 28 day period commences on the date that an applicant is taken to have been notified.    The Tribunal is satisfied that the applicant was appropriately notified in the decision of the right of merits review and the time period within which a review must be lodged. Therefore the prescribed period to apply for review ended on 5 May 2021.

5. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

6. The applicant was invited to comment on the validity of his application.  In response, the following letter was received from [Mr A], of [Lawyer Firm 1] on 5 July 2021: 

   We refer to your letter dated 21 June 2021.

   As per your letter, the last day to receive the application for review was 5 May 2021, however the application was not received until 14 May 2021.

   The applicant has instructed us the following:

   1.He had gone to Medicare and they had informed him that his visa was due to expire i.e. that a decision had been made on his protection visa application.

   2.The applicant has a different primary email address and it is different from the email address that the Department of Home Affairs (DHA) sent the refusal decision to.

   3.He received no alternative communication from the DHA to indicate that his application had been refused.

   4.He believes that he has genuine grounds for protection from India and should he return, there is a real chance that he will suffer significant harm. 

   Should you have any queries, please contact the writer.

7. The Tribunal has considered the submissions made.  The Tribunal checked the application for protection and the email address given therein by the applicant against the email address to which the notification of refusal and the delegate’s decision were dispatched.  They are the same.  The Tribunal is satisfied that the applicant was properly notified of the refusal decision on 8 April 2021 by email to the email address he provided. The Tribunal finds that the applicant is taken to have been notified of the decision on 8 April 2021: s.494C of the Act.  Therefore, the prescribed period to apply for review ended on 5 May 2021.  There is no provision in the legislation which allows the period within which a review application must be lodged to be extended. 

8. As the application for review was not received by the Tribunal until 14 May 2021 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Anne Grant
   Member