2403981 (Refugee)

[2024] AATA 853

2403981 (Refugee) [2024] AATA 853 (28 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2403981

MEMBER:Member Nathan Goetz

DATE:28 March 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 28 March 2024 at 12:03pm

CATCHWORDS
REFUGEE – protection visa – review application attaches visa refusal decision record for another person – applicant’s application not yet decided – no reviewable decision – no response to invitation to comment – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 411, 412
Migration Regulations 1994 (Cth), r 4.02(4)

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. This is an application for review of a purported decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the applicant a protection visa.

   BACKGROUND

2. The applicant identifies as a male citizen of Vietnam presently located in Australia. He identified that he was born on [Date 1].

3. On 19 September 2023 the applicant applied for a protection visa.

4. On 4 March 2024 the applicant applied to the Tribunal for review of the purported decision.

   CONSIDERATION

5. In the review application form, the applicant identified that he was seeking a review of a decision made on 3 March 2024. He provided his department identification number as [Number 1] and the visa application identification as [Reference].

6. Curiously, the decision record he attached to the review application form related to a person named [Mr A], who was born on [Date 2], with department identification number [Number 2] and visa application identification as [Number 2]. The delegate made a decision on that visa application on 2 March 2024.

7. On 5 March 2024 the Tribunal wrote to the applicant and asked him to comment on the validity of the review. This was because department records showed that no decision had been made by a delegate to refuse to grant the [the applicant] a protection visa. The applicant was asked to comment on the validity of the review in writing by 19 March 2024. The Tribunal received no response from the applicant.

8. A search of the department records as of 28 March 2024 shows that it is still the case that no decision has been made by a delegate of the Minister to refuse to grant the applicant a protection visa.

9. 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.

10. These decisions include decisions to refuse and cancel visas of various kinds and a range of sponsorship and nomination decisions, but the evidence before the Tribunal indicates that at the time the review application was lodged, no relevant decision had been made. This remains the case at the time the Tribunal is making a decision on the review.

    FINDINGS AND REASONS

11. No reviewable decision had been made at the time the review application was lodged, nor at the time the Tribunal is making its decision. It follows that the application was not properly made, and the Tribunal does not have jurisdiction in this matter.

    DECISION

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

    Nathan Goetz

    
    

    Member