1730538 (Refugee)

[2018] AATA 722

1730538 (Refugee) [2018] AATA 722 (8 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1730538

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Nicola Findson

DATE:8 January 2018

PLACE OF DECISION:  Perth

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

Statement made on 08 January 2018 at 11:50am

CATCHWORDS

Refugee – Protection visa – Malaysia – Invalid application – Failed to provide the required personal identifiers

LEGISLATION

Administrative Appeals Tribunal Act 1975 s.29

Migration Act 1958, ss 46(2A), 257A, 338, 347, 411, 412

Migration Regulations 1994 r .4.02(4)

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. An application was made to the Tribunal on 4 December 2017 for review of an application for a Protection (Subclass 866) visa.  For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

2. 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.

3. Section 46(2A) of the Act sets out the requirement for the provision of personal identifiers. Specifically, that section provides that an application for a visa is invalid if the Minister has not waived the operation of this subsection in relation to the application for the visa. Section 46(2A) also provides that where the applicant has been required to provide one or more personal identifiers under section 257A, and the applicant has not complied with the requirement, then the visa is invalid.

4. On 14 December 2017, the Tribunal wrote to the applicant and advised her that its view was that the Tribunal does not have jurisdiction to review the application because her application for the Protection visa appeared to be invalid.  The letter stated that this is a matter which must be determined by a Member of the Tribunal.  The letter invited the applicant to make comments on whether a valid application has been made, in writing, by 28 December 2017.

5. As at the time of this decision record, no response has been received in relation to the Tribunal’s letter.

6. Having regard to the above, the Tribunal finds the application for the Protection (Subclass 866) visa lodged by the applicant with the Department of Immigration and Border Protection [in] August 2017 is an invalid application because the applicant failed to provide the required personal identifiers. On the evidence before the Tribunal, it finds the Minister has not waived the operation of s.46(2A) in relation to her application. The Tribunal finds the applicant was required to provide the relevant personal identifiers, and finds she has failed to do so. Because of this, her application is invalid. For these reasons, there is no reviewable decision for the Tribunal. It follows that the application was not properly made and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Nicola Findson
   Member