1803505 (Refugee) [2018] AATA 568 (28 February 2018)

Last Updated: 22 March 2018

1803505 (Refugee) [2018] AATA 568 (28 February 2018)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1803505

COUNTRY OF REFERENCE: China

MEMBER: Amanda Paxton

DATE: 28 February 2018

PLACE OF DECISION: Melbourne

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

Statement made on 28 February 2018 at 11:55am

CATCHWORDS
Refugee – Protection visa – China – Review application out of time

LEGISLATION
Migration Act 1958, ss 65, 431, 494C
Migration Regulations 1994, r 4.31

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 [in] November 2017 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 9 February 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: 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 [on a date in] November 2017 and dispatched by post. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
4. On 13 February 2018, the Tribunal wrote to the applicant indicating its preliminary view that the application for review was not made within the relevant time limit. It was noted that the primary decision was posted to the applicant on [a date in] November 2017 meaning that [a later date in] November 2017 was the date on which the applicant was taken to have been notified. On that basis, the last day for lodging the application for review was [a date in] December 2017. As the application was not received until 9 February 2018, it appeared to be out of time. The applicant was invited to make comment on whether a valid application has been made.
5. On 26 February 2018, the applicant emailed the Tribunal advising that:
   • I did not received DIBP decision on time as the registered letter notice was mistakenly dropped to my neighbor’s mail box which led to my delay of AAT review. When I received the mail notice which was passed by neighbor, it has already missed the deadline for AAT review
   • I feel very innocent as I believe that the Australian post should be responsible for the incident.
6. The Tribunal has considered the applicant’s submission but finds the applicant was correctly notified. The Tribunal also notes that the Department of Home Affairs have provided evidence that the delegate’s decision record was sent to the applicant by registered post, Registered Post number [specified number].^[1] As indicated on the Australia Post website, Registered post letters require proof of receipt with a signature on delivery.^[2] On this basis, the Tribunal does not accept that the registered letter was mistakenly dropped into the applicant’s neighbour’s mail box as claimed.
7. The Tribunal finds that the applicant is taken to have been notified of the decision on [the later date in] November 2017: s.494C of the Act. Therefore the prescribed period to apply for review ended on [a date in] December 2017. As the application for review was not received by the Tribunal until 9 February 2018 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

DECISION

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

Amanda Paxton
Member

---

^[1] AAT 1803505, f. 19.
^[2] https://auspost.com.au/sending/send-within-australia/compare-letter-services/registered-post-letters