1905896 (Refugee)

[2019] AATA 3761

1905896 (Refugee) [2019] AATA 3761 (15 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1905896

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Luke Hardy

DATE:15 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 15 April 2019 at 12:49pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – no response to Tribunal communication – applicant departed Australia – no jurisdiction – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 412

Migration Regulations 1994 (Cth), 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 has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 6 March 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 13 March 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. In this case, movement records show that the applicant departed Australia before the date of the primary decision and, significantly, was not in Australia’s ‘Migration zone’ at the time of the review application.

5. The Tribunal wrote to the applicant by email on 27 March 2019 to advise of the jurisdictional issue and to invite comments by 10 April 2019 on whether a valid review application had been made. The Tribunal has received no reply.

6. On the evidence before it, the Tribunal finds that the applicant was not in the migration zone at the relevant time. 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.

   Luke Hardy
   Member