2110328 (Refugee)

[2021] AATA 4412

2110328 (Refugee) [2021] AATA 4412 (28 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2110328

COUNTRY OF REFERENCE:                   China

MEMBER:Luke Hardy

DATE:28 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 28 September 2021 at 4:46pm

CATCHWORDS
REFUGEE – Protection Visa – China – applicant was not in the migration zone when the review application was made – application for review is not a valid application – no jurisdiction

LEGISLATION
Migration Act 1958, ss 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 dependant.

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 6 August 2021, 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 11 August 2021. 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. The Minister’s delegate records that the applicant departed Australia [in] April 2021 without a current visa which would allow him to re–enter Australia. The delegate thus found that he did not meet the criteria for grant of a Protection (subclass 866) visa under section 40 of the Migration Act 1958 (the Act) and refused to grant him the visa under subsections 65(1)(a)(iii) and 65(1)(b) of the Act.

4. 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.

5. The applicant was evidently not in the migration zone when the review application was made. His review application thus appeared invalid for want of standing.

6. On 26 August 2021, the Tribunal wrote to the applicant at his email address advising him of the jurisdictional issue and inviting him to comment in writing by 9 September 2021 on whether a valid application was made. The Tribunal has received no response.

7. On the evidence before it, 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.

   DECISION

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

   Luke Hardy
   Member