1837719 (Refugee)

[2019] AATA 3581

1837719 (Refugee) [2019] AATA 3581 (28 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1837719

COUNTRY OF REFERENCE:                  China

MEMBER:Nathan Goetz

DATE:28 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 28 February 2019 at 2:50pm

CATCHWORDS
REFUGEE – protection visa – China – no response to tribunal communication – applicant departed Australia – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 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.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 18 March 2018 the applicant [name] made an application for a  [protection] visa. The applicant is a citizen of China and arrived in Australia on a visitor visa [in] December 2017.

2. On 10 December 2018 a delegate of the Minister for Immigration refused to grant the visa s.65 of the Migration Act 1958 (the Act).

3. On 22 December 2018 the applicant lodged an application for review of the refusal decision with the Tribunal. The applicant did not attach a copy of the delegate decision.

4. On 15 January 2019 the Tribunal wrote to the applicant and raised with her its concern that her review application was invalid because it appeared that she was not in Australia when the review application was lodged. The Tribunal invited the applicant to comment in writing on the validity of her application by 29 January 2019. The Tribunal has never received a response from the applicant.

5. 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.

6. 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.

7. The evidence before the Tribunal indicates that the review applicant left Australia [in] December 2018 and has not returned. She was therefore not in Australia when the delegate refused her a protection visa, and she has lodged her review application with the Tribunal while she was offshore. Consequently, the Tribunal finds that the applicant was not in the migration zone at the relevant time.

8. 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

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

   Nathan Goetz
   Member