1823989 (Refugee)

[2018] AATA 4362

1823989 (Refugee) [2018] AATA 4362 (12 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1823989

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Jason Pennell

DATE:12 September 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 12 September 2018 at 12.27pm

CATCHWORDS
REFUGEE – Protection visa – Vietnam – review application lodged out of time – no jurisdiction

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

CASES
Kim v Minister for Immigration and Multicultural and Ingenious Affairs [2006] FCAFC 64
Minister of Immigration and Citizenship v Manaf (2009) 111ALD 437
Xie v Minister for Immigration and Multicultural and Ingenious Affairs [2005] FCAFC 172

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 20 July 2018 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 18 August 2018. 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.[1]

   [1] 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 20 July 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. Accordingly, the Tribunal finds that the applicant is taken to have been notified of the decision on 20 July 2018.[2] Therefore the prescribed period to apply for review ended on 16 August 2018.

   [2] s.494C of the Act or r.2.55 of the Regulations

4. The Tribunal is not able to extend the time allowed for an application to be made. Section 494C is a statutory deeming provision. It does not create a rebuttable presumption that notification has occurred.[3] It has the effect of deeming a person to have received a document regardless of what events actually transpire.[4] That is, it provides that in certain circumstances a person is taken to have received the document.[5] Accordingly, the Act provides that the document has been received and it is not a matter that can be reviewed.[6] The Tribunal does not have any discretion to extend the time limit for making an application for review.

   [3] Minister of Immigration and Citizenship v Manaf (2009) 111ALD 437[2009] FCA @ [21] per Sundberg J

   [4] Ibid

   [5] Xie v Minister for Immigration and Multicultural and Ingenious Affairs [2005] FCAFC 172 @ [13] per Spender, Kiefel and Dowsett JJ

   [6] Kim v Minister for Immigration and Multicultural and Ingenious Affairs [2006] FCAFC 64 @ [8]

5. By a letter dated 24 August 2018 the Tribunal advised the applicant that his application was not valid as it had not been lodged within the relevant time limits. The Tribunal invited the applicant to make any comment, in writing, on whether a valid application had been made by 7 September 2018. The Tribunal has not received any correspondence in response to its letter.

6. As the application for review was not received by the Tribunal until 18 August 2018 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Jason Pennell
   Member