1721394 (Refugee)

[2018] AATA 150

1721394 (Refugee) [2018] AATA 150 (23 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1721394

MEMBER:Louise Nicholls

DATE:23 January 2018

PLACE OF DECISION:  Sydney

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

Statement made on 23 January 2018 at 5:04pm

CATCHWORDS

Refugee – Protection visa – Sri Lanka – Safe Haven Enterprise visa applicant – Application not properly made – Decision not reviewable by Administrative Appeals Tribunal – Decision only reviewable by Immigration Assessment Authority

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29

Migration Act 1958, ss 338, 347, 411, 412

Migration Regulations 1994, r 4.02

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. The applicant claims to be a citizen of Sri Lanka and is [age]. The applicant arrived from Sri Lanka by boat on [location] [in] December 2012 and on [another location] [later in] December 2012.

2. [In] December 2015 the applicant was invited to make an application for either a Temporary Protection visa (subclass 785) or a Safe Haven Enterprise visa (subclass 790). [In] April 2015 the applicant made an application for a Safe Haven Enterprise visa (subclass 790).

3. His application was refused by a delegate of the Minister for Immigration [in] August 2017. In the delegate’s notification[1] the applicant was advised he was entitled to apply to the Administrative Appeals Tribunal for review of the refusal decision. This was not correct.

   [1] DIBD File [number deleted] f.60

4. The applicant subsequently applied to the Tribunal for review of the refusal decision [in] September 2017.

5. On 4 January 2018 the Tribunal wrote to the applicant and invited him to comment on information which suggested he was a “fast track” applicant and that the decision he was seeking to review was a “fast track decision”. The invitation noted that

   A fast track decision is a decision made by the Minister for Immigration and Border Protection (the Minister) to refuse to grant a protection visa to a person known as a “fast track applicant”. A person is a fast track applicant if they arrived in Australia by boat without a valid visa on or after 13 August 2012, but before 1 January 2014, and has been permitted by the Minister to make an application for a protection visa in Australia.

   The information before the Tribunal indicates that:

   ·You arrived by boat in Australia after 13 August 2012 and before 1 January 2014.

   ·You did not have a valid visa at the time of your arrival.

   ·[In] December 2015 you were invited to lodge an application for a temporary protection visa or a safe haven enterprise visa. [In] April 2017 you applied for a Safe Haven Enterprise (Class XE visa) and your application was refused.

   Notwithstanding the contents of the Department’s letter [in] August 2017 in which you were advised that you were entitled to seek review to the Tribunal for review of the decision, the Tribunal is of the view that your application for review is not a valid application. This is because a “fast track decision” is not a decision that can be reviewed by this Tribunal, but is reviewable by the Immigration Assessment Authority (IAA).

6. The applicant was advised that if he wished to make any comments on whether a valid application had been made he should do so by 22 January 2018. There was no response to the invitation.

7. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

8. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to refuse and cancel a protection visa, but they do not include a ‘fast track decision’ made in relation to a protection visa application: s.411(2)(c).

9. The Tribunal considers that the decision that is the subject of the review application is a fast track decision and is not a reviewable decision. It follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

    Louise Nicholls
    Senior Member