2421655 (Refugee)

2421655 (Refugee) [2024] AATA 4235 (10 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2421655
COUNTRY OF REFERENCE:                   China
MEMBER:Adrienne Anderson
DATE:10 October 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 10 October 2024 at 3:35pm
CATCHWORDS
REFUGEE – Protection Visa – China – applicant was notified of the decision in accordance with the statutory requirements – application lodged out of time – no jurisdiction
LEGISLATION
Acts Interpretation Act 1901 (Cth), s 36(2)
Migration Act 1958, s 494
CASES
SZVRO v Minister for Immigration and Border Protection [2017] FCA 421
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

This is an application for review of a decision of a delegate of the Minister for Home Affairs on 4 March 2024 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 7 July 2024. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
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: reg 4.31(2) of the Migration Regulations 1994 (Cth) (the Regulations).
The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 4 March 2024 and dispatched by email.
On 22 July 2024 the Tribunal wrote to the applicant to notify him that it appeared that it had no jurisdiction in relation to his application for review as it was lodged out of time. He was invited to provide any comments on the validity of the application by 5 August 2024.
The applicant responded on 5 August 2024. The applicant stated that he had not applied to the Tribunal within the required period because he did not check his email account and did not see the refusal letter in time. He explained that this occurred because while he had used one email address in protection visa application form (the first email address), he had mistakenly provided a second email address at his biometrics interview when asked to confirm his email address (the second email address).
Departmental records confirm that on 9 November 2023 the applicant provided the first email address in his protection visa application form as his email address for correspondence. Departmental records also confirm that the applicant attended a biometrics appointment in relation to the protection visa application on 5 December 2023 and state that the applicant’s contact details were updated as per the applicant’s advice at the ‘bio counter’. Departmental records indicate that the applicant provided the second email address and another telephone number and that these were entered into the departmental system as the applicant’s contact details.
The applicant was notified of the decision by letter dispatched to the second email address.
Section 494B of the Act governs the methods by which the Minister gives documents to a person. Section 494B(5)(d) states that another method consists of the Minister transmitting by email to ‘the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents’.
The Tribunal has considered whether the applicant’s provision of the second email address at the biometrics appointment was for the purposes of receiving documents. While the applicant’s subjective purpose is relevant to some extent, this is an ‘objective assessment in light of all of the circumstances, including how a reasonable person in the shoes of the Minister would have understood the purpose for which the address was being provided’.[1] The Tribunal finds, on the basis of the evidence before it, that the address was provided for the purposes of receiving documents, noting that the biometrics appointment related to the protection visa application (rather than another application) and that it was provided together with a new telephone number which could reasonably be interpreted as indicating that the applicant was updating rather than confirming his contact details. Nor does it appear from the applicant’s own evidence or departmental records that the applicant suggested in any way that the email address was provided for a purpose other than receiving correspondence from the Department including documents. Given that this is the primary function of an email address, as opposed to a physical address which may be designated as a residential or a postal address, the Tribunal considers that a reasonable person in the Minister’s position would have understood the provision of this email address to be for the purposes of receiving documents.
[1] SZVRO v Minister for Immigration and Border Protection [2017] FCA 421 at [49].
Accordingly, the Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. The Tribunal finds that the applicant is taken to have been notified of the decision on 4 March 2024: s 494C of the Act. Therefore the prescribed period to apply for review ended on 31 March 2024.
As the last day of the prescribed period fell on a Sunday, 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 2 April 2024: s 36(2) of the Acts Interpretation Act 1901 (Cth).
The Tribunal has no discretion to extend the time period for making a valid review application. As the application for review was not received by the Tribunal until 7 July 2024 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
DECISION
The Tribunal does not have jurisdiction in this matter.
Adrienne Anderson
Member

The applicant sought review of a decision concerning a protection visa. The core of the dispute was whether the Administrative Appeals Tribunal (AAT) had jurisdiction to hear the applicant's review application, which was lodged after the statutory time limit had expired. The decision was made by Adrienne Anderson, a Member of the AAT.

The primary legal issue before the Tribunal was whether it possessed any discretion to extend the time period for lodging a valid application for review. This question arose because the applicant's review application was received by the Tribunal on 7 July 2024, which was beyond the prescribed timeframe for making such an application.

The Tribunal determined that it did not have the power to extend the time for lodging a review application. Applying the relevant legislative provisions, the Tribunal concluded that as the application for review was not received within the statutory period, it was not made in accordance with the legislation. Consequently, the Tribunal found that it lacked jurisdiction to consider the merits of the applicant's case.

The Tribunal ordered that it did not have jurisdiction in this matter.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established