1910571 (Refugee)

[2019] AATA 4783

1910571 (Refugee) [2019] AATA 4783 (4 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1910571

MEMBER:Linda Symons

DATE:4 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 04 June 2019 at 2:18pm

CATCHWORDS

REFUGEE – protection visa – China – applicant not in country – no response – no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958 (Cth), ss 338, 347, 411, 412
Migration Regulations 1994 (Cth), r 4.02(4)

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 27 April 2019 for review of a decision to refuse an application for a Protection visa. 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). Information before the Tribunal indicates that the applicant was not in the migration zone when the decision was made.

3. The evidence before the Tribunal is that the applicant departed Australia [in] April 2019 and has not returned since then. The Department of Home Affairs (the Department) made a decision to refuse his application for a Protection visa on 24 April 2019. He was not in the migration zone when this decision was made.

4. The Tribunal wrote to the applicant on 3 May 2019 and invited him to comment on the validity of his application for review in writing by 17 May 2019. This letter was sent to him by email on 3 May 2019. The Tribunal did not receive any notification that it had not been delivered. The Tribunal did not receive a response.

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.

   Linda Symons
   Member