1908628 (Refugee)

[2019] AATA 4193

1908628 (Refugee) [2019] AATA 4193 (9 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1908628

MEMBER:Nora Lamont

DATE:9 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 09 September 2019 at 9:20am

CATCHWORDS
REFUGEE – protection visa – Malaysia – outside of ‘migration zone’ at time of primary decision – no reviewable decision – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 338, 347, 411, 412
Migration Regulations 1994 (Cth), r 4.02, Schedule 2, cl 866.411

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 9 April 2019 for review of a protection visa application refusal. 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 Migration Act 1958 (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. These include a decision to refuse to grant a protection visa and a decision to cancel a protection visa but they do not include decisions made in relation to a non-citizen who is not physically present in the migration zone when the decision is made: s.411(2)(a).

3. Information before the Tribunal indicates that the applicant was not in the migration zone when the decision was made. The applicant departed Australia [in] March 2019 before the decision by the Department had been made. The applicant did not satisfy cl. 866.411 of Schedule 2 of the Migration Regulations 1994 which requires an applicant to be in Australia at the time of the visa grant.

4. Additionally the applicant applied to the Tribunal for review of this decision whilst outside of Australia. Therefore the application is not valid. The applicant was invited to comment but to date no response was received.

5. As the applicant was not in the migration zone at the time of the primary decision, the decision is not a reviewable decision. It follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Nora Lamont
   Member