2107630 (Refugee)

[2021] AATA 3469

2107630 (Refugee) [2021] AATA 3469 (10 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2107630

MEMBER:Tania Flood

DATE:10 August 2021

PLACE OF DECISION:  Sydney

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

Statement made on 10 August 2021 at 9:20am

CATCHWORDS

REFUGEE – protection visa – Malaysia – review application for an invalid visa application – no Tribunal-reviewable decision – no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 91, 338, 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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application for review was made to the Tribunal on 11 June 2021. On the application for review form the applicant indicated that she is applying for review of a WC 030 visa refused on 11 June 2021. However, the Department’s records show that a bridging visa WC 030 associated with a Protection XA 866 visa application was granted on 12 December 2019 and remained in effect. On 11 June 2021 the Department notified the applicant that her application for a Protection XA 866 visa was not valid because of the application of sections 91N and 91P of the Migration Act 1958. The Tribunal is satisfied that the applicant is seeking review of that notification.

2. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

3. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (Cth) (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 (Cth). Sections 338 and 411 of the Act and reg 4.02(4) of the Migration Regulations 1994 (Cth) set out the 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 decision in respect of an application which is deemed to be invalid.

4. On 13 July 2021 the Tribunal wrote to the applicant advising her that her application for review appears not to be a valid application as the Tribunal is not authorised to review an invalid application.  The applicant was invited to make any comments on whether a valid application has been made in writing by 27 July 2021.  The applicant did not respond.

5. 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

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

   Tania Flood
   Member