TPRS and Minister for Immigration and Border Protection (Migration)
[2018] AATA 1278
•11 May 2018
TPRS and Minister for Immigration and Border Protection (Migration) [2018] AATA 1278 (11 May 2018)
Division:GENERAL DIVISION
File Number(s): 2018/1170
Re:TPRS
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Date:11 May 2018
Place:Sydney
The Tribunal does not have jurisdiction to review the decision of the Minister for Immigration and Border Protection made 11 October 2017 to refuse the Applicant’s application for a Protection (Class XA) visa.
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J W Constance
Deputy PresidentCATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – migration – whether Tribunal has jurisdiction to review decision to refuse visa application – whether application for review lodged in time – when applicant taken to have been given notice of decision to refuse visa application – notice by email to the last email address provided to the Minister – no discretion to extend time to lodge application for review – no jurisdiction to review decision
LEGISLATION
Migration Act 1958 (Cth) ss 494B, 494C, 500, 501G
Migration Regulations 1994 (Cth) reg 2.16
CASES
Pathania v Minister for Immigration and Border Protection [2015] FCA 1262
REASONS FOR DECISION
Deputy President J W Constance
11 May 2018
INTRODUCTION
On 11 October 2017 a delegate of the Minister refused the Applicant’s application for a Protection (Class XA) visa (“the cancellation decision”). The application was made under the provisions of the Migration Act 1958 (Cth) (“the Act”).
On 8 March 2018 the Applicant applied to the Tribunal to review the cancellation decision.
Subsection 500(6B) of the Act requires an application to review a delegate’s decision in matters such as this to be made “within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1)”.
An issue has arisen as to the jurisdiction of the Tribunal to review the cancellation decision. To determine this issue I have to decide when notice of the decision was given to the Applicant. The Tribunal does not have jurisdiction unless the Applicant applied to the Tribunal within 9 days of being notified of the decision.
The conclusion reached
For the reasons which follow I have decided that the Tribunal does not have jurisdiction in this matter.
BACKGROUND
The Applicant first entered Australia in 2003 as the holder of a Student visa. In 2008 she applied for a Protection visa.
In 2009 this application was refused. Later the same year the refusal decision was set aside by the Refugee Review Tribunal. Following this decision the Applicant continued to reside in Australia in accordance with a Bridging visa while the Minister gave further consideration to the application for the Protection visa. During this process there were several occasions when the Applicant did not respond to requests by the Department sent to various postal and email addresses provided by the Applicant.
In her application for the Protection visa the Applicant advised the Department that she could be contacted by email at a specified gmail address (“the gmail address”).[1]
[1] Exhibit R1 p.26.
In 2008 the Applicant made a request for asylum seeker assistance to the Department. On this occasion she gave her contact address as a specified ymail address (“the ymail address”).[2]
[2] Exhibit R1 p.209.
In February 2009 the Applicant’s migration agent provided to the Department an email address of the Applicant at a yahoo address (“the yahoo address”).[3] The address was provided in relation to the Applicant’s request for asylum seeker assistance.[4] No correspondence relevant to this application was sent to this address.
[3] Exhibit R1 p.218.
[4] Exhibit R1 p.209.
In July 2012 the Applicant lodged with the Department a Form 80 – Personal particulars for character assessment in respect of her application for the Protection visa. In that form she gave her email address as the ymail address.[5]
[5] Exhibit R1 p.113.
On 15 May 2017 the Department sent a notice of intention to consider refusal of the application for a Protection visa addressed to the Applicant. The notice was sent to the gmail address and the ymail address.[6]
[6] Exhibit R1 pp.120-122.
As the Department did not receive a response to the notice, on 8 September 2017 it sent emails to the gmail address and the ymail address, again inviting the Applicant to provide further information in relation to her visa application.[7]
[7] Exhibit R1 p.123.
On 11 October 2017 the Minister’s delegate decided to refuse to grant the Applicant a Protection visa. Notice of the refusal was sent by the Department to the gmail address and the ymail address on 20 October 2017.[8]
[8] Exhibit R1 p.414.
THE LAW
Provision of the Act relating to the manner of giving notice of a decision to refuse an application for a visa
Subsection 501G(3) provides:
(3) A notice under subsection (1) must be given in the prescribed manner.
Manner of giving notice prescribed by the Migration Regulations
Regulation 2.16 of the Migration Regulations 1994 (Cth) provides, in part:
(1)For subsections 66(1) and 501G(3) of the Act (which deal with giving notice of decisions), this regulation sets out the way of notifying a person of a decision to grant or refuse to grant a visa.
…
Refusal to grant visa
(3)The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.
Note: If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.
Section 494B of the Migration Act – Methods by which Minister gives documents to a person
Section 494B provides in part:
(1) For the purposes of provisions of this Act or the regulations that:
(a)require or permit the Minister to give a document to a person (the recipient); and
(b)state that the Minister must do so by one of the methods specified in this section;
the methods are as follows.
…
(5) Another method consists of the Minister transmitting the document by:
(a) fax; or
(b) email; or
(c) other electronic means;
to:
(d)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;
EVIDENCE OF THE APPLICANT
The Applicant provided a statement dated 3 April 2018[9] and gave evidence.
[9] Exhibit A1.
The Applicant said that she did not receive any of the emails sent on 15 May 2017, 8 September 2017 and 20 October 2017 as she had ceased to use both addresses prior to 2017. She first became aware that her Protection visa application had been refused when she visited the Department’s office in Sydney on 2 March 2018. The Applicant was given a copy of the notice of refusal at that time.[10] I accept this evidence.
[10] Exhibit A1.
On 12 May 2016 the Applicant was being held in immigration detention as a result of her Bridging visa having been cancelled. In an interview conducted by an officer of the Department she advised that she did not have an email address but that she would provide one later. She did not do this and at no time after that interview did the Applicant provide an email address directly to the Department or to the Minister.
Sometime between 11 May 2016 and 23 May 2016 the Applicant applied to this Tribunal to review the decision of the Minister to cancel her Bridging visa. In her application she provided to the Tribunal an email address for correspondence. The address provided was different to those previously referred to in these reasons.
The Applicant agreed that on 23 May 2016 the Tribunal sent an email to the Department advising it of the Tribunal’s decision to set aside the Minister’s decision.[11] In the same email the Tribunal advised the Applicant’s “contact information as recorded in our case management system…as at 23 May 2016”.[12] The information provided included the email address which the Applicant had provided to the Tribunal.
[11] Exhibit R1, Supplementary G Documents p.124.
[12] Exhibit R1, Supplementary G Documents p.124.
REASONING
Section 494B of the Act permitted the Minister to provide notice of the cancellation decision in several different ways, one of which was “the last…email address…provided to the Minister for the purposes of receiving documents”. The choice of the particular method is a matter for the Minister.[13]
[13] Pathania v Minister for Immigration and Border Protection [2015] FCA 1262 at para.[18].
The last email address provided to the Minister was the ymail address provided by the Applicant when she submitted the Form 80 – Personal particulars for character assessment in July 2012. This was the same address as that she provided when she submitted her request for asylum seeker assistance in 2008.
I agree with the argument put on behalf of the Minister that he was not required to notify the Applicant of his decision by means of the email address provided to the Tribunal in 2016 and subsequently notified to the Department by the Tribunal. This address was not provided to the Minister by the Applicant and in any event, it was not provided for the purposes of receiving documents in respect of the application for the Protection visa.
Subsection 494C(5) of the Act provides that in the case of email transmission a recipient “is taken to have received the document at the end of the day on which the document is transmitted”. As notice of the cancellation decision was emailed to the Applicant on 20 October 2017 she is taken to have received it on that day. It follows that the last day for making an application to the Tribunal to review the Minister’s decision was 29 October 2017. The Tribunal does not have power to extend the time for making the application.
CONCLUSION
The Tribunal does not have jurisdiction to review the decision of the Minister for Immigration and Border Protection made 11 October 2017 to refuse the Applicant’s application for a Protection (Class XA) visa.
I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
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Associate
Dated: 11 May 2018
Date(s) of hearing: 27 March 2018 & 18 April 2018 Applicant: By telephone Solicitors for the Respondent: Mr J Hutton, Australian Government Solicitor
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Jurisdiction
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Judicial Review
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Procedural Fairness
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Statutory Construction
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