2109245 (Refugee)

[2021] AATA 5640

2109245 (Refugee) [2021] AATA 5640 (6 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2109245

MEMBER:Roslyn Smidt

DATE:6 December 2021

PLACE OF DECISION:  Sydney

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

Statement made on 6 December 2021 at 5:02 PM

CATCHWORDS
REFUGEE – Protection Visa – protection visa (XA866) – applicant appeared to be a national of two countries – non-reviewable decision – no jurisdiction

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) 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 dependant.

statement of decision and reasons

1. On 17 June 2021 the Department of Home Affairs advised the applicant that the protection visa (XA866) application which she had lodged on 17 February 2021 was not valid as she appeared to be a national of two countries. The applicant applied for review of that decision on  20 July 2021.

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

3. According to the Department’s notification the applicant’s protection visa application indicated that she was a citizen of both Malaysia and Cambodia. She was advised that her application appeared to be affected by sections 91N and 91P of the Migration Act 1958 (the Act) which prevent person who are nationals of two or more countries from making a valid applicant for protection visa. She was advised the Minister had the power under section 91Q of the Act to determine that section 91 does not apply and allow an application to make a valid application for protection if he believed it was in the public interest to do so. She was advised that her application was considered to be a request for the Minister to exercise his power under that section and invited to submit further information for the Minister to consider, should he wish to do so.

4. No response was received by the Department.

5. On 1 September 2021 the Tribunal wrote to the applicant to advise her that it appeared that her application was not valid and therefore the Tribunal could not review it.

6. On 11 September 2021 the applicant responded to the Tribunal’s letter. She said that the Department had been incorrect in its assessment of her nationality as she was a Malaysia citizen and was not a citizen of Cambodia.

7. The issue before the Tribunal is not whether the Department correctly assessed the applicant’s nationality or nationalities, but whether there is a reviewable decision before it.

8. The Tribunal has jurisdiction to review a decision under 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 notification that an application for a visa is not valid.

9. 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

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

    Roslyn Smidt
    Member