1811880 (Refugee)

[2018] AATA 4023

1811880 (Refugee) [2018] AATA 4023 (13 August 2018)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1811880

COUNTRY OF REFERENCE:                  China

MEMBER:  Nathan Goetz

DATE:  13 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 13 August 2018 at 11:30am

CATCHWORDS

REFUGEE – protection visa – China – review applicant outside of the migration zone – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 411, 412

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.

In accordance with s.431 of the Migration Act 1958, the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the  Act). This decision is reviewable under s.411 of the Act.

1. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

1. The review applicant is a citizen of the People's Republic of China. She entered Australia on a [temporary] visa on 21 December 2017.

1. On 17 January 2018, the applicant lodged a protection visa application and she was granted an associated bridging visa while her application was being considered.

1. Departmental records indicate that before the protection visa application was decided, the review applicant departed Australia on 9 April 2018 and has never returned.

1. Subsequently, the delegate refused to grant the protection visa because the review applicant had left Australia and could not satisfy the criteria that the review applicant is in Australia at the time of decision. The delegate made this decision on 13 April 2018.

1. On 26 April 2018, via the internet, the review applicant lodged a review of the decision with the Tribunal

1. Pursuant to s.412(2) and (3) of the Act, an application for review for a decision of this type may only be made by the non-citizen who is the subject of the primary decision, and who is physically present in the migration zone when the application for review is made. 'Migration zone' is defined in s.5(1) of the Act and generally speaking means the Australian States and Territories.

1. The Tribunal wrote to the review applicant on 26 July 2018 advising her that it appeared the Tribunal had no power to review the decision because the review applicant was not in Australia at the time she lodged her review application with the Tribunal. The review applicant was invited to comment on the validity of her application in writing by 9 August 2018. The Tribunal has never received a response from the applicant.

1. Given the departmental records and lack of response from the review applicant, the Tribunal is satisfied that the applicant was not in the migration zone at the relevant time. As such, the application for review is not a valid application made under s.412 and it follows the Tribunal does not have jurisdiction in this matter.

DECISION

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

Nathan Goetz Member

Case Number 1811880  Page 2 of 2