1930509 (Refugee)

[2022] AATA 3220

1930509 (Refugee) [2022] AATA 3220 (17 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1930509

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Peter Haag

DATE:17 August 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 17 August 2022 at 6:55am

CATCHWORDS

REFUGEE – protection visa – Malaysia – outside the migration zone at time of review application – no jurisdiction

LEGISLATION

Migration Act 1958, ss 5(1), 36, 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 dependants.

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 Home Affairs, dated 28 October 2019, to refuse to grant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This decision is reviewable under s 411 of the Act.

2. The review application was lodged with the Tribunal on 28 October 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. Movement records indicate that the applicant left Australia [in] March 2022. By a letter dated 13 July 2022 the Tribunal advised the applicant that its records showed he was not currently in Australia and did not hold a visa that enabled him to return to Australia. The letter advised the applicant that a protection visa can only be granted if he is in Australia. The Tribunal invited the applicant to respond to the information in writing by 27 July 2022. No correspondence has been received by the Tribunal in response to the letter.

5. The evidence before the Tribunal indicates that he has not been in Australia since [March] 2022 and that he remains outside the country. Therefore, the applicant does not satisfy the requirements of s 36(2) and cannot be granted a protection visa.

6. Having reached this conclusion, it is not necessary to consider the applicant's substantive case for the grant of the visa.

   decision

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

   Peter Haag
   Member