2015111 (Refugee)

[2020] AATA 5726

2015111 (Refugee) [2020] AATA 5726 (17 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2015111

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Hugh Sanderson

DATE:17 December 2020

PLACE OF DECISION:  Sydney

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

Statement made on 17 December 2020 at 3:13pm

CATCHWORDS
REFUGEE – protection visa – Taiwan – applicant departed Australia – 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 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 Immigration, dated 14 September 2020, 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 10 October 2020. 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. The applicant’s movement records show that he departed Australia [in] September 2020 and has not returned since then. The Tribunal wrote to the applicant on 22 October 2020 stating as follows:

   In order to have made a valid application, you must have been in Australia at the time the application was lodged with us on 10 October 2020.  It appears that you were not in Australia on that date, and I am therefore of the view that your application is not a valid application.  However, this is a matter which must be determined by a Member.

5. The applicant responded on that date providing the withdrawal of application form.

6. The evidence before the Tribunal indicates that the applicant departed Australia [in] September 2020 and has not returned since then. 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.

7. Although the applicant has provided a withdrawal of application form, as the Tribunal has found that it does not have jurisdiction there is no valid application before the Tribunal to withdraw. Accordingly, the Tribunal has made the decision it has rather than to proceed with the withdrawal of the application.

   DECISION

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

   Hugh Sanderson
   Member