1604415 (Refugee)

This matter concerned an application for review of a delegate's decision to refuse protection visas to a family of Libyan citizens. The first applicant's visa was refused because the delegate found serious reasons to believe he had committed serious non-political crime and crimes against humanity. The second and third applicants, as members of the same family unit, were refused visas on the basis that they did not satisfy the criteria for inclusion in a protection visa application. The fourth applicant, born in Australia after the initial application, had a separate protection visa application lodged in her name.

The primary legal issues before the Tribunal were whether it had jurisdiction to hear the review application in relation to each of the applicants, and if so, what was the correct and preferable decision to make, particularly given that the first applicant's protection application had not been finalised. The Tribunal was required to consider the operation of sections 5H(2) and 36(2C) of the Migration Act 1958 (Cth), which relate to serious non-political crime and crimes against humanity, and the Tribunal's power to determine issues arising under section 36(2C).

The Tribunal reasoned that it lacked jurisdiction in the Migration and Refugee Division concerning the first applicant because his visa refusal was based on sections 5H(2) and 36(2C), and his review application had been decided by the General Division of the Tribunal. The Tribunal also found it had no jurisdiction in relation to the third and fourth applicants. However, the Tribunal determined it had jurisdiction in relation to the second applicant.

The Tribunal's final orders were to set aside the decision in relation to the second applicant and remit the matter for reconsideration, with a direction that the second applicant satisfied criterion 866.211. For the first, third, and fourth applicants, the Tribunal found it did not have jurisdiction.