1834213 (Refugee)

[2018] AATA 5136

1834213 (Refugee) [2018] AATA 5136 (13 December 2018)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1834213

MEMBER:  Simone Burford

DATE:  13 December 2018

PLACE OF DECISION:  Perth

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

Statement made on 13 December 2018 at 12:21pm

CATCHWORDS
REFUGEE – protection visa – China – invalid application – no reviewable decision – no jurisdiction

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 29
Migration Act 1958 (Cth), ss 65, 338, 347, 411, 412
Migration Regulations 1994 (Cth) 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.

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 was made to the Tribunal on 21 November 2018 for review of a refusal of a sub class 866 visa. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

1. 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.

1. Shortly after lodgement of the application, on 21 November 2018, the Tribunal received an email from the applicant’s registered email address. That email read as follows:

I was [sic] accidentally submitted a [sic] application for a refugee visa refusal but the fact is I do not have a refusal case.

Attached is a withdrawal form, please help to withdraw my application.

A ‘Withdrawal of application for migration or refugee review’ form was attached to the email. The form was in the applicant’s name and signed on 21 November 2018.

1. The Tribunal wrote to the applicant on advising him that his application appeared not to be a valid application as there is no decision to be reviewed by the Tribunal. The letter acknowledged the applicant’s request to withdraw the application but noted that a withdrawal can only be made once a valid application for review has been lodged.  As the application was being assessed for validity it was not possible to withdraw the application at that time.

1. The letter went on to note:

If the Member decides that you have not made a valid application, your case will be finalised on the basis that we do not have jurisdiction to conduct the review. If your application is found to be valid we will process the withdrawal and notify you.

1. The applicant was invited to make any comments on whether a valid application had been made by 7 December 2018.  No submissions were received from the applicant in response.

1. 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

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

Simone Burford Member

Case Number 1834213  Page 2 of 2