2216762 (Refugee)

[2023] AATA 643

2216762 (Refugee) [2023] AATA 643 (6 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2216762

COUNTRY OF REFERENCE:                   Fiji

MEMBER:David Crawshay

DATE:6 March 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 06 March 2023 at 4:43pm

CATCHWORDS
REFUGEE – protection visa – Fiji – application for review made more than 28 days after notification of visa refusal decision – adequacy of notification of review rights – visa application made together with husband and child – notification addressed to husband only – ‘you’ stated to refer to each applicant in respect of own application – notifications given to any taken to be given to each – notification adequate – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 52(3C), 65, 66(1), 494B, 494D
Migration Regulations 1994 (Cth), r 2.08A, Schedule 1, cl 1401(3)(c), r 4.31(2)

CASES
Chiu v MHA [2018] FCA 1774
SZUAH v MIBP [2016] FCA 66
SZFOH v MIAC (2007) 159 FCR 199
SZMTR v MIAC [2009] FMCA 892
VEAN of 2002 v MIMIA (2003) FCR 570

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 Home Affairs on 21 August 2019 to refuse to grant a protection visa under s.65 of the Migration Act 1958 (Cth) (the Act). The review application was lodged with the Tribunal on 15 November 2022. 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 (Cth).

3. A brief background to this matter is warranted. A Form 866 application form was submitted to the Department. Part B of that form listed the applicant as being included in that application, along with her husband [Mr A] and one of her children, [Ms B]. The applicant, along with these two other people, completed separate copies of Part C of Form 866.

4. As above, on 21 August 2019 the delegate refused to grant a protection visa in respect of the applicant. The material before the Tribunal indicates that notification of this decision occurred on 21 August 2019 when it was dispatched by email to an email address. The email address to which the notification letter and decision record were dispatched was the same email address as [Mr A] gave in Part C of his application form (at question 37). The applicant listed a different email address in her Part C.

5. While it does not appear to be in dispute that the application for review was lodged on 15 November 2022, some controversy surrounds the notification of the applicant’s protection visa refusal. In a submissions letter of 15 November 2022 which was subsequently reproduced in full in a further letter of 4 December 2022, it was claimed on behalf of the applicant that the notification was defective for these reasons:

   ·It did not state who could apply for review;

   ·It did not address the applicant as the unsuccessful visa applicant; and

   ·It was not sent to the address the applicant provided in her visa application form.

6. As to the first reason, it was claimed that the notification letter was “inherently confusing” because of certain features – such as by addressing the applicant’s husband alone in its commencement; and by first referring to her husband’s individual visa application and then “erroneously” referring to all applicants’ visa applications as if they formed a single, indivisible application. It was claimed that the latter of these features meant it was not clear to an ordinary reader that each of the three visa applicants (that is, the applicant, her husband and her child) could make their own individual merits review application in respect of their own individual visa application.

7. The Tribunal has considered the submission in front of it. It finds that the notification letter contains all the information that is needed to ascertain who has a right to apply for review. Firstly, it contains a reference to the application in respect of the applicant being refused under the hearing “Decision on Protection (subclass 866) visa”. It then contains the following sentence:

   In the following information, when we say ‘you’ we mean each of these applicants, in relation to their own application.

8. The effect of this deeming sentence is that all subsequent references to “you” now refer to each applicant in respect of their own application. This includes references to “you” in the section contained under the heading “Review Rights”. This is crucial as it meant that the application was no longer “indivisible” (if it ever were) as submitted on behalf of the applicant but was now personal to each individual visa applicant.

9. In these circumstances, the Tribunal finds that it was clear that each of the three visa applicants was referred to in the notification letter and that each could make his or her own individual merits review application. They were each informed that they had been refused the visa for which they had applied. By operation of the deeming sentence, they were each informed that they could apply for review individually. These pieces of information are logically set out in the notification letter over two sections, one after the other.

10. For the above reasons, the Tribunal rejects the first of the submissions.

11. As to the second reason, it was claimed that s.52(3C) of the Act is not applicable to Protection visa applications combined under cl.1401(3)(c) of Schedule 1 to the Regulations.

12. Section 52(3C) states as follows:

    If, in accordance with the regulations, 2 or more non-citizens apply for visas together, notifications given to any of them about the application are taken to be given to each of them.

13. The submissions letter argued that, while the applicant’s visa application was combined with those of her husband and child, their applications were not made “together” and s.66(1) of the Act applied separately to all three visa applications. This submission appears to be based on the fact that all applicants for a protection visa must satisfy the primary criteria and therefore there are no secondary applicants to a protection visa. The submissions letter extracts an incomplete quote from the case of Chiu v MHA [2018] FCA 1774 (which dealt with the refusal of a partner visa application), where Collier J (at [37]) held that notification to a primary visa applicant in a partner visa application constitutes notification to a secondary visa applicant where the latter has been joined pursuant to r.2.08A of the Regulations. In that case, Collier J stated as follows (at [36]):

    The success, or failure, of his [the secondary applicant’s] visa application was clearly dependent on her [the primary applicant’s] application”.

    [bracketed words added]

14. The submissions letter argued that the success or failure of one protection visa applicant is in no sense “clearly dependent” on the application of any other applicant. Because of this, the visa applications of the applicant and her husband and daughter were not made “together” in the sense described in Chiu. Other authorities were cited as supporting this submission.

15. The Tribunal does not accept this submission. The available authorities (including those cited in Chiu) clearly state that s.52(3C) is applicable to protection visa applications: SZUAH v MIBP [2016] FCA 66, [24] (Robertson J); SZVHE v MIBP [2017] FCA 154, [11] (Jessup J). There is no information to show that Chiu’s case is at odds with these earlier authorities. Furthermore, the other authorities referred to by the submissions – being VEAN of 2002 v MIMIA (2003) FCR 570, SZFOH v MIAC (2007) 159 FCR 199 and SZMTR v MIAC [2009] FMCA 892 – do not deal with notification where s.52(3C) of the Act is involved but are concerned with notification to an authorised recipient under s.494D of the Act. They are therefore not relevant for the present matter where no authorised recipient was nominated.

16. The Tribunal does not accept that the applicant, her husband and their daughter were precluded from making an application together under s.52(3C) of the Act because their applications were Protection visa applications or because their applications were not “clearly dependent” on others.

17. After having considered the Form 866 application forms (including Part B and C thereof), the Tribunal accepts that the visa applications of the applicant, her husband and their daughter were made together pursuant to s.52(3C).

18. As to the third reason, it was claimed that, as the three Protection visa applications were not made “together” within the meaning of s.52(3C) of the Act, the applicant needed to be notified of the refusal decision using a method in s.494B of the Act. As the Tribunal has above found that the applications were made together within the meaning of s.52(3C), it finds that notification to the applicant’s husband was notification to the applicant herself: SZUAH v MIBP [2016] FCA 66, [24]. As such, the notification did not need to go to the email address nominated by the applicant in her Part C of the Form 866 application form.

19. The Tribunal finds that the applicant was notified of the decision in accordance with the Act.

20. The Tribunal finds that the applicant is taken to have been notified of the decision on 21 August 2019: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 17 September 2019. As the application for review was not received by the Tribunal until 15 November 2022 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

    DECISION

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

    David Crawshay
    Member