1908156 (Refugee)

[2019] AATA 1447

1908156 (Refugee) [2019] AATA 1447 (14 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1908156

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Cathrine Burnett-Wake

DATE:14 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 14 May 2019 at 10:13am

CATCHWORDS
REFUGEE – protection visa – Malaysia – not in migration zone when review application is lodged – no valid application – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 5, 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 15 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 3 April 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. On 8 April 2019, the Tribunal registry wrote to the applicant outlining that in order to have made a valid application, the applicant must have been in Australia at the time the application was lodged with the Tribunal on 3 April 2019. Further, that it appears that the applicant was not in Australia on that date, therefore a preliminary view had been formed that the application is not a valid application. The letter also outlined that this however, was a matter which must be determined by a Member. The applicant was invited to respond to this information by 23 April 2019.

5. The applicant did not respond to the Tribunal’s letter of 8 April 2019.

6. The Department’s movement records show that the applicant departed Australia [in] March 2019 and has not returned. The Tribunal finds that the applicant was not in the migration zone at the relevant time, being 3 April 2019. 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.

   Cathrine Burnett-Wake
   Member