1903415 (Refugee)

[2019] AATA 3920

1903415 (Refugee) [2019] AATA 3920 (21 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1903415

COUNTRY OF REFERENCE:                  China

MEMBER:Tania Flood

DATE:21 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 21 March 2019 at 12:18pm

CATCHWORDS

REFUGEE – protection visa – China – outside the migration zone at time of review application – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 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.

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, dated 1 February 2019, 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.

2. The review application was lodged with the Tribunal on 14 February 2019. 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.

3. 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.

4. The records of the Department indicate that the applicant left Australia [in] February 2018 and has not returned since then.  His application for review was lodged on 14 February 2019 when he was not physically present in the migration zone.

5. On 1 March 2019 the Tribunal wrote to the applicant advising him that it appears his application is not a valid application as he was not in Australia at the time of lodgement.  The Tribunal invited the applicant to make any comments on whether a valid application has been made in writing by 15 March 2019.  The Tribunal did not receive a response.

6. The evidence before the Tribunal indicates that the applicant was not physically present in the migration zone when the application for review was made.  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

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

   Tania Flood
   Member