2107661 (Refugee)

[2021] AATA 3513

2107661 (Refugee) [2021] AATA 3513 (3 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2107661

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Meena Sripathy

DATE:3 August 2021

PLACE OF DECISION:  Sydney

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

Statement made on 03 August 2021 at 12:16pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – review application made out of time – detained at a correctional centre – restrictions of using telecommunication devices – valid notification of decision – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 494C
Migration Regulations 1994 (Cth), r 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 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 18 December 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 13 June 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 18 December 2020 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.[1]

   [1] The Tribunal has considered relevant caselaw authorities which have analysed the validity of a number of Departmental notification letters including DFQ17 v MIBP [2019] FCAFC 64, BMY18 v MHA [2019] FCAFC 189 and Singh v MIBP [2020] FCAFC 31. Having regard to these authorities, the Tribunal is of the view that the notification letter of 18 December 2020 is valid.

4. On 22 June 2021 the Tribunal wrote to the applicant to invite comments of the view that the application for review may not be valid because it was not lodged within the relevant time limit. The applicant was advised that the period in which an application for review of a Part 7-reviewable decision must be given to the Tribunal is 28 days (under r.4.31(2) of the Migration Regulations), 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]. As the primary decision was emailed on 18 December 2020, this was the date on which the applicant is taken to have been notified and the last day for lodging the application for review was 14 January 2021, however the application was not received until 13 June 2021. The applicant was invited to make any comments or response on this issue by 6 July 2021. To date no response to this invitation to comment has been received by the Tribunal.

5. The Tribunal notes the statement submitted by the applicant with his review application, indicating that he is detained at a correctional centre and due to restrictions of using telecommunication devices in the correctional centre he was unable to receive any email. He states he only noticed that his visa application had been refused and did not appeal in the specific time frame and seeks permission to make the late AAT appeal.

6. A review of documents provided by the Department indicates that efforts were made by the Department to provide updated contact details on 9 December 2020 prior to the notification of the Protection visa refusal decision, including a letter transmitted by email to the address notified in his application for communication.  A copy of this correspondence was also provided to the detention case manager at Justice NSW.  There is no indication that the applicant responded to the Department or provided new or changed contact details. The Tribunal observes that the applicant submitted a copy of the Department’s request for updated contact details letter with his review application, indicating that he received it.    

7. On 18 December 2020 the refusal decision was notified to the applicant to the email address he provided in the application, being the last address for communication provided by the applicant to the Department. The Tribunal has also considered the evidence of communication between the Department and relevant staff at the correctional centre relating to the matter of notification of the decision, and reviewed the material before it relating to the address for communication provided by the applicant to the Department.   Having regard to this material the Tribunal does not accept the applicant’s claim that he did not receive any email communication from the Department.

8. The Tribunal finds that the applicant is taken to have been notified of the decision on 18 December 2020: s.494C of the Act.  Therefore the prescribed period to apply for review ended on 14 January 2021.  Once an applicant has been validly notified of the primary decision, the application for review must be lodged with the Tribunal within the relevant prescribed period.  The Tribunal has no power to extend the time limit. 

9. As the application for review was not received by the Tribunal until 13 June 2021 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

    Meena Sripathy
    Member