N97/20867 [1998] RRTA 994 (24 February 1998)

In October 1997, the Applicant, a national of the People's Republic of China, lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (the Department). The protection visa is the means of granting protection to those persons to whom Australia has protection obligations because they are refugees within the meaning of the 1951 Convention and 1967 Protocol relating to the Status of Refugees. In October 1997 a delegate of the Minister for Immigration and Multicultural Affairs decided that the Applicant was not a refugee and, accordingly, not entitled to a protection visa. A letter dated October 1997 was sent to the Applicant advising her of the delegate's decision. A copy of the decision was sent to the Applicant's migration agent. In December 1997 the Tribunal received an application for review of the delegate's decision.

The question which arises in this case is whether the Tribunal has jurisdiction in respect of the application for review.

Section 411 of the Migration Act 1958 (the Act) sets out those decisions which are reviewable by the Tribunal. They include a decision to refuse to grant a protection visa. Section 412 sets out the requirements for a valid application to the Tribunal. The requirement relevant to this case is that an application must be given to the Tribunal within the period prescribed.

An application for review must be lodged at a registry of the Tribunal no later than 28 days after notification of the decision: r.4.31 of the Migration Regulations (the Regulations). There is no provision for extension of time. The provisions dealing with notifications of decisions are contained in s.66 of the Act and r.2.16 of the Regulations. The contents of the notification must comply with the legislative requirements and it must be correctly addressed. Regulation 5.03 provides, in effect, that a document which meets the legislative requirements for notification is taken to have been received seven days after the date of the document provided that it is posted within seven days after that date. This is so even if the notification was never in fact received: s.53(3) of the Act and r.5.03 of the Regulations; see also Santos v MIMA (1997) 144 ALR 229 and Dawai and Anor. v. MIMA, Federal Court, Moore J, 3 February 1997. In this case, the Department has provided evidence that the letter notifying the Applicant of its decision was posted in October 1997 and was correctly addressed to the last residential address supplied to the Department by the Applicant. For the application for review to be valid, therefore, it had to be given to the Tribunal no later than a day in December 1997. As already noted, it was not received by the Tribunal until some weeks later.

In February 1998 the Tribunal, having formed the view that the Applicant's application appeared to be out of time, wrote to her inviting submissions on this issue. A copy of the letter was sent to the Applicant's agent. In response, the Applicant has sworn a statutory declaration in which she does not dispute that the application for review was out of time but states that she left the address to which the decision was sent in November 1997; her agent tried to contact her without success and the people who moved in after she left did not know her and did not pass on messages. The Applicant also submitted a letter from a friend with whom she now lives, certifying that she helped the Applicant move from her former address in November 1997.

In this case, on the evidence before the Tribunal, all requirements for a valid notification have been met. Further, the letter advising the Applicant of the decision to refuse her a protection visa was sent within 7 days of its date. Her application for review was lodged after the prescribed period had expired.

The Tribunal sympathises with the Applicant but it is bound by the provisions of the Act and the Regulations. There is no provision in the legislation for an extension of time to be granted, no matter the circumstances or whatever injustice might result. This is not a matter in which the Tribunal has any discretion. It cannot give itself powers which it does not have. It has no power to extend the period within which an application must be given to it: Coung Van Nguyen v. M. W. Gerkens, Refugee Review Tribunal, unreported, Full Federal Court, 24 April 1997, per Marshall J. at 13.

The Tribunal does not have jurisdiction to review the decision to refuse to grant the