2302334 (Refugee)

[2023] AATA 2269

2302334 (Refugee) [2023] AATA 2269 (1 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2302334

MEMBER:Peter Papadopoulos

DATE:1 May 2023

PLACE OF DECISION:  Sydney

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

Statement made on 01 May 2023 at 4:50pm

CATCHWORDS

REFUGEE – protection visa – Afghanistan – no Tribunal-reviewable decision – no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 197, 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

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 21 February 2023 for review of a decision that they are no longer a person in respect of whom a protection finding would be made under section 197D of the Migration Act 1958 (Cth). 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 (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 visas of various kinds, but the evidence before the Tribunal indicates that a protection finding decision has not been made in relation to the applicant.

3. On 24 February 2023, an officer of the Tribunal wrote to the Department to verify whether any decisions had been made to refuse or cancel a visa in relation to the applicant or whether the applicant has been a subject of or notified of any decisions, including any decisions made under section 197D(2) of the Act. Information about the applicant, including their surname, date of birth and passport number was provided to the Department to assist with its inquiries.

4. On 27 February 2023, an officer of the Department wrote to the Tribunal advising that, based upon the information provided, the Department has been unable to confirm if any decisions have been made in relation to the applicant.

5. On 28 February 2023, the Tribunal wrote to the applicant and informed him that his application to the Tribunal did not sufficiently detail the decision or decisions he was seeking to have reviewed and that the Tribunal had attempted to contact the applicant as soon as it became aware of this but it was unsuccessful in reaching them.  The Tribunal also indicated the possibility that it may now be too late for the applicant to provide details of the decision(s) to be reviewed.  The Tribunal invited the applicant make comments on whether a valid application was made by 15 March 2023. The Tribunal has not received a response in relation to whether their review application is a valid application.

6. As there is no reviewable decision, it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Peter Papadopoulos
   Member