1730692 (Refugee)

[2018] AATA 138

1730692 (Refugee) [2018] AATA 138 (5 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1730692

MEMBER:Brendan Darcy

DATE:5 January 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 05 January 2018 at 9:49am

CATCHWORDS

Refugee – Protection visa – Malaysia – Invalid application – No reviewable decision – Previous no jurisdiction decision for same reasons

LEGISLATION
Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 46, 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. An application was made to the Tribunal on 5 December 2017 for review.  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. They include decisions to refuse and cancel visas of various kinds and a range of sponsorship and nomination decisions, but the evidence before the Tribunal indicates that at the time the review application was lodged, no relevant decision had been made.

3. However, the information before the Tribunal indicates that that at the time of the review application was lodged that no relevant decision had been made.

4. Upon receipt of the application for review from the applicant in this case, the Tribunal examined the Department's information system (ISCE) in respect of the applicant and determined that there is no visa refusal decision relevant to the application for review. [In] September 2017, an officer of the Department therefore corresponded with the applicant and informed the applicant that as the applicant had not provided personal identifiers, and the Minister had not waived the operation of s.46(2A) in relation to the application. Indeed the applicant submitted the same notification as part of this review application.

5. Further, on 14 December 2017, the Tribunal wrote to the applicant and invited her to comment on its preliminary assessment where it considered the Tribunal does not have jurisdiction to review the application in this case. In particular, the Tribunal's letter of that date states that by letter dated [in] September 2017 the delegate notified the applicant that her application for a Protection visa was invalid. The Tribunal letter states that this notification by the Department that the application was invalid as it was not a decision that is reviewable by the Migration and Refugee Division of Administrative Appeals Tribunal. The Tribunal's letter invited the applicant to submit comments in writing on whether a valid application has been made and to do so by 23 October 2017. At the time of writing this decision no comment or response regarding the substantive matters relating to an invalid application had been received from the applicant or from anyone on the applicant’s behalf.  

6. It is also noted that this review application lodged on 5 October 2017 had already been reviewed by a Tribunal Member whose decision (1724166 on 31 October 2017) also found that it did not have jurisdiction for the same reasons.

7. As no reviewable decision had been made at the time the review application was lodged it follows that the application was not properly made and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Brendan Darcy
   Member