1835329 (Refugee)

[2019] AATA 995

1835329 (Refugee) [2019] AATA 995 (2 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1835329

MEMBER:James Silva

DATE:2 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 02 January 2019 at 9:23am

CATCHWORDS
REFUGEE – protection visa – Malaysia – invalid application – not reviewable decision – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth) , ss 48A, 338, 347, 411, 412

Migration Regulations 1994 (Cth), r 4.02
Administrative Appeals Tribunal Act 1975 (Cth) s 29

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 1 December 2018 for review of a ‘decision’ relating to a Protection visa application. Although the applicant referred to a decision to refuse to grant him a visa, in fact the Minister’s delegate assessed that the visa application was invalid. The basis for this was that the applicant had been subject to a previous decision to refuse to grant him a protection visa, and s.48A of the Migration Act 1958 (the Act) prevented him from making a subsequent protection visa application while still in Australia. 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 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 or cancel visas and a range of sponsorship and nomination decisions, but not an assessment that a visa application is not valid.

3. The Tribunal wrote to the applicant on 5 December 2018, explaining its preliminary view on the validity of the application for review, and inviting him to comment. In his response of 18 December 2018, the applicant restated his protection claims. He added that his English is poor and he did not receive any letters from the Department advising him that he did not hold a valid visa. These comments do not address the issue of the validity of his application for review.

4. As the delegate’s decision is not reviewable under Parts 5 or 7 of the Act it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   James Silva
   Member