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1005726 [2010] RRTA  767  (7 September 2010)

Last Updated: 15 September 2010

1005726  [2010] RRTA 767  (7 September 2010)

DECISION RECORD

RRT CASE NUMBER: 1005726

DIAC REFERENCE(S): CLF2010/23672

COUNTRY OF REFERENCE: Indonesia

TRIBUNAL MEMBER: Tony Caravella

DATE: 7 September 2010

PLACE OF DECISION: Perth

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Citizenship (the delegate) to refuse to grant [name and date of birth deleted under s.431(2) of the Migration Act 1958 as this information may identify the applicant.] (the applicant) a Protection (Class XA) visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa [in] February 2010. The delegate decided to refuse to grant the visa [in] May 2010 and notified the applicant of the decision and her review rights by letter dated [and posted the same day].
3. The applicant applied to the Tribunal [in] July 2010 for review of the delegate’s decision.
4. The question that arises in this case is whether the Tribunal has jurisdiction. Whether it does depends on whether the application lodged [in] July 2010 is a valid application under s.412 of the Act for review of the delegate’s decision.
5. The Tribunal formed the preliminary view that it did not have jurisdiction because the application for review was not received within the prescribed period for lodgement. The Tribunal wrote to the applicant on [a further date in] July 2010 inviting submissions on this issue. The Tribunal received written submissions [in] August 2010.

RELEVANT LAW

6. The Tribunal’s jurisdiction arises if a valid application is made under s.412 of the Act for review of an RRT-reviewable decision: s.414 of the Act. Section 411 sets out the various decisions that are RRT-reviewable decisions. A decision to refuse to grant a Protection (Class XA) visa under s.65 of the Act is covered by s.411(1)(c). Section 412(1)(b) requires an application for review to be given to the Tribunal within the prescribed period. The prescribed periods are set out in r.4.31 of the Migration Regulations 1994 (the Regulations) and commence on the day on which the applicant is validly notified of the decision.
7. In respect of an applicant who has applied for review of an RRT-reviewable decision covered by s.411(1)(c) and is not in immigration detention when notified of the delegate’s decision, the application for review must be lodged at a registry of the Tribunal within a period not later than 28 days after the day on which notice is received: s.412(1)(b) and r.4.31(2)(b). Thus, notification of the decision provides the reference point for the commencement of the prescribed period provided for in s.412(1)(b) and r.4.31(2)(b). There is no provision for an extension of time. An application sent to the Tribunal by post or by fax is taken to be given to the Tribunal when it is received at a registry of the Tribunal: r.4.31(4).
8. The provisions relevant to this matter that deal with notification of a decision to refuse to grant a visa are contained in ss.66, 494B, 494C and 494D of the Act and r.2.16 of the Regulations.
9. Section 66(1) provides that when the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way. Regulation 216 provides that for the purposes of s.66(1), the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in s.494B. Section 494B specifies alternative methods for giving a document to a person.
10. One of the methods specified in s.494B consists of the Minister dispatching the document within 3 working days of the date of the document by prepaid post or other prepaid means to the last address for service or the last residential or business address provided to the Minister by the recipient for the purpose of receiving documents: s.494B(4). If a document is given to a person by this method and the document was dispatched from a place in Australia to an address in Australia, the person is taken to have received the document 7 working days (in the place of the address) after the date of the document: s.494C(4)(a). This will be so even if the document was never in fact received. Therefore, if the notice of a decision to refuse to grant a visa was sent in accordance with s.494B, from a place in Australia to an address in Australia, the prescribed period within which a review application must be lodged with the Tribunal commences 7 working days after the date of the notice.
11. Section 66(2) provides that notification of a decision to refuse a visa must contain certain information about why the visa was refused and, if there is a right of review, how to apply for review of the decision.

FINDINGS AND REASONS

12. The Tribunal has before it the Department’s file.
13. The Tribunal has also had regard to the submissions received [in] August 2010 in relation to the question of jurisdiction.
14. The material before the Tribunal indicates, and the Tribunal finds, that the applicant was not in immigration detention when notified of the decision.
15. The Tribunal finds that the applicant is seeking review of an RRT-reviewable decision covered by s.411(1)(c) and that the applicable prescribed period is 28 days, commencing on the day on which the applicant was validly notified of the decision in accordance with the Act: s.412(1)(b) and r.4.31(2)(b).
16. The Tribunal is satisfied that the contents of the delegate’s decision notice complied with the requirements of s.66(2).
17. The material before the Tribunal indicates that the applicant did not give the Minister written notice under s.494D of the name and address of an authorised recipient and that the decision notice, dated [in] May 2010, was sent by prepaid post on [the same day] from a place in Australia to the applicant at an address in Australia, being the last residential address provided to the Minister by the applicant for the purposes of receiving documents.
18. The Tribunal finds that the decision notice was dispatched within 3 working days of the date of the letter to the correct address, in accordance with s.66(1) and s.494B(4). Therefore, the applicant is taken to have received the notice on [a further date in] May 2010, being 7 working days after the date of the notice.
19. In the submission to the Tribunal dated [in] August 2010, the applicant’s registered migration agent, namely, [company deleted: s.431(2)], stated that the application had been faxed on [a date in] June 2010, however, the fax machine used for this purpose had some errors at the time of faxing on [that day] and the fax machine did not issue a print out confirmation report whilst the LED display confirmed a sent message. The representative also stated that it has become apparent that the fax was indeed not received as has been the case with several other of faxes. The representative further stated that upon having this issue brought to his attention he again sent this application [in] July 2010 to the Tribunal. The representative requested the Tribunal grant compassion to the applicant by accepting the late lodged review application on the basis that its lateness was due to faulty office equipment which was completely outside of the applicant’s control, and not due to a lack of professionalism.
20. In the submission to the Tribunal dated [in] July 2010, the representative stated their other clients have advised that whilst receiving print outs of confirmation a fax from [company deleted] no data has accompanied or followed the confirmation.
21. Information before the Tribunal indicates that the Tribunal received two blank faxes from the applicant’s representative on [the previous date in] June 2010 instead of [the following day]. The first fax was recorded as received at 1:38pm consisting of one blank page, and the second fax at 1:43pm consisting of five blank pages. The Tribunal finds that the faxes sent [in] June 2010 were not a valid review application. The Tribunal has no power or discretion to extend the timeframe for lodging an application for review, and therefore it cannot consider the representative’s faulty office equipment or other circumstances applicable in this case in reaching a decision on whether it has jurisdiction to conduct a review.
22. The Tribunal finds that the applicant was properly notified of the delegate’s decision and is taken to have been notified on [a date in] May 2010. Therefore, the prescribed period of 28 days within which the application for review could be lodged ended on [a date in] June 2010.
23. The application for review was not received by the Tribunal until [a date in] July 2010, after the prescribed period had expired.
24. For these reasons, the application for review was not valid and the Tribunal has no jurisdiction in this matter.

DECISION

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