1834641 (Refugee)

[2018] AATA 5795

1834641 (Refugee) [2018] AATA 5795 (18 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1834641

MEMBER:David McCulloch

DATE:18 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 18 December 2018 at 9:53am

CATCHWORDS

REFUGEE – Protection visa – review applicant not in the migration zone at the time of the primary decision –non-reviewable decision – No jurisdiction

LEGISLATION

Migration Act 1958, ss 29, 338, 347, 411, 412,

Migration Regulations 1994, r 4.02, Schedule 2

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 26 November 2018 for review of the refusal of a protection visa on 14 November 2018. 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. These include a decision to refuse to grant a protection visa and a decision to cancel a protection visa but they do not include decisions made in relation to a non-citizen who is not physically present in the migration zone when the decision is made: s.411(2)(a). Information before the Tribunal indicates that the applicant was not in the migration zone when the decision was made.

3. The Tribunal wrote the applicant on 30 November 2018 indicating that the applicant did not appear to have made a valid application on the basis of being out of the country. No response to that letter was received.

4. The Tribunal finds that the applicant was not in Australia/migration zone at the time that the primary decision was made.

5. As the applicant was not in the migration zone at the time of the primary decision, the decision 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

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

   David McCulloch
   Member