1932292 (Refugee)

[2021] AATA 3068

1932292 (Refugee) [2021] AATA 3068 (21 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1932292

MEMBER:Dr Colin Huntly

DATE:21 June 2021

PLACE OF DECISION:  Perth

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

Statement made on 21 June 2021 at 2:41pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – applicant failed to provide required personal identifiers – no valid application – no jurisdiction

LEGISLATION
Migration Act 1958, ss 46, 257A, 347, 411, 412
Migration Regulations 1994, r 4.02

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 13 November 2019 for review of decision by a delegate of the Minister that the applicant’s application for a Protection visa (subclass 866) was invalid because it failed to comply with s.46(2A) of the Migration Act 1958 (the Act).  This failure occurred because the applicant failed to provide personal identifiers as lawfully required by a delegate of the Minister pursuant to s.257A of the Act. 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.

3. Section 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out a range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to refuse or cancel visas and a range of sponsorship and nomination decisions, but not a where the applicant has failed to lodge a valid application for protection.

4. On 17 June 2019 the Department wrote to the applicant, at the contact email address nominated by the applicant in his application for protection, advising that his application for a Protection visa had been received as valid, provided that the applicant provide personal identifiers as lawfully required by a delegate of the Minister pursuant to s.46(2A) and s.257A of the Act. The applicant was given an appointment with an officer of the Department on 28 June 2012 to facilitate his compliance with this requirement.

5. On 2 July 2019 the Department wrote to the applicant, via his nominated email address, advising that, as he had not complied with the requirement to provide personal identifiers as lawfully required by a delegate of the Minister pursuant to s.46(2A) and s.257A of the Act, his application for protection was not valid.

6. The Tribunal has reviewed the Department’s file and finds that the Department used the applicant’s correct stipulated contact address in each case.

7. On 19 December 2019, the Tribunal wrote to the applicant and gave him the opportunity to make submissions, on or before 2 January 2020, as to why the Tribunal might have jurisdiction to review the decision in this case.  As at the date of this decision, the applicant has made no submissions in response to the Tribunal’s invitation.

8. As the delegate’s decision is not reviewable under Parts 5 or 7 of the Act it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Dr Colin Huntly
   Member