1909086 (Refugee)

[2019] AATA 4555

1909086 (Refugee) [2019] AATA 4555 (16 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1909086

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Frances Simmons

DATE:16 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 16 August 2019 at 5:45pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – invalid review application – outside of ‘migration zone’ – 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 22 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 12 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. Departmental records indicate the applicant departed Australia [in] March 2019.

4. On 1 May 2019  the Tribunal wrote to the applicant and invited him to comment on it preliminary view his application for review was not valid. The Tribunal noted that in order to have made a valid application, he must have been in Australia at the time the application was lodged with the Tribunal on 12 April 2019, however it appeared that he was not in Australia on that date. The applicant did not respond to this invitation to comment.

5. The evidence before the Tribunal indicates that the applicant was not in Australia at the time the review application was lodged. 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

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

   Frances Simmons
   Member