2412731 (Refugee)

[2024] AATA 3797

2412731 (Refugee) [2024] AATA 3797 (13 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2412731

MEMBER:Frances Simmons

DATE:13 September 2024

PLACE OF DECISION:  Sydney

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

Statement made on 13 September 2024 at 5:26pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – primary decision still pending – no relevant decision at the time of revew application – no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 338, 347, 411, 412
Migration Regulations 1994, r 4.02

CASES

SZMBM v MIAC [2008] FMCA 529   

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 was made to the Tribunal on 20 May 2024 for review of a decision to refuse grant a protection visa (Subclass 866). The application form did not identify the date of the decision made by a delegate of the Minister for Home Affairs. Departmental records show that the applicant lodged a protection visa application on 13 September 2023 and, on 20 May 2024, the primary decision was still pending. 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. However, the evidence before the Tribunal indicates that at the time the review application was lodged, no relevant decision had been made.

3. On 24 May 2024 the Tribunal wrote to the applicant and invited her to comment on its preliminary view that her application is not a valid application as a decision had not been made by a delegate of the Minister for Home Affairs and therefore there was not a decision to review.  At the time of writing, the applicant had not responded to this invitation.

4. Departmental records show the delegate made a decision on the applicant’s application for a protection visa on 7 June 2024.

5. For there to be a valid application for review, a decision must in fact be in existence at the time the application for review is made. An application for review cannot be made in anticipation of a primary decision, which will be Part 7-reviewable, once it is made.[1] In SZMBM v MIAC [2008] FMCA 529, the applicant applied to the Tribunal before the delegate’s decision on his visa application had been made. The Court found that there was no provision in the Act giving the Tribunal jurisdiction to review decisions that may be made in the future. Accordingly, for there to be a valid application for review, a decision must in fact be in existence at the time the application for a review is made.[2]

   [1] SZMBM v MIAC [2008] FMCA 529 at [4].

   [2] SZMBM v MIAC [2008] FMCA 529 at [4].

6. In the present matter, the applicant made an application for review on 20 May 2024 before the delegate’s decision on her protection visa application had been made. The fact that  the delegate subsequently decided to refuse to grant the applicant a protection visa on 7 June 2024 does not change the fact that the application for review made on 24 May 2024 was not valid because, at the time of the application was lodged, no relevant decision had been made.

7. As no reviewable decision had been made at the time the review application was lodged it follows that the application was not properly made and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Frances Simmons
   Member