1504830 (Migration)

[2015] AATA 3037

1504830 (Migration) [2015] AATA 3037 (2 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yateen Neelkanth Datar
Ms Sayali Yatin Datar
Mr Ameya Yateen Datar
Miss Aishwarya Yateen Datar

CASE NUMBER:  1504830

DIBP REFERENCE(S):  BCC2014/1164281

MEMBER:Christopher Smolicz

DATE:2 July 2015

PLACE OF DECISION:  Adelaide

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

Statement made on 02 July 2015 at 11:40am

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 Immigration, dated 18 March 2015, to refuse to grant Business Skills (Provisional) visas under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(2) of the Act.

2. The review application was lodged with the Tribunal on 9 April 2015. For the following reasons, the Tribunal has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

3. Section 347 of the Act specifies who has the right to apply for review of an MRT-reviewable decision.

4. In the case of an MRT reviewable decision described in s.338(2), an application for review may only be made by the non-citizen who is the subject of the decision and who is physically present in the migration zone when both the primary decision and the application for review are made: s.347(3) and (3A). ‘Migration zone’ is defined in s.5(1) of the Act and generally speaking means the Australian States and Territories.

5. As stated above the primary decision was made on 18 March 2015 and applicants applied to the Tribunal to review the delegate’s decision on 9 April 2015. The Department’s movement records show Mr Yateen Neelkanth Datar and Ms Sayali Yatin Datar were not in Australia on those dates.

6. On 22 April 2015 an officer of the Tribunal wrote to the applicants notifying them that the Tribunal considers it does not have jurisdiction in the matter and invited the applicants to make comments on the validity of the application.

7. The applicants responded to the Tribunal’s letter. In particular it was submitted that the applicants’ previous agent did not advise them that they needed to be in Australia during the lodging of the visa application. It was submitted that if they were aware of the law they would have been present in Australia. The Tribunal has also considered the material submitted by the agent about changes in the first named applicant’s circumstances however it does not have any discretion in the matter.

8. The Tribunal finds that the applicants were not in the migration zone at the relevant time. As such, the application for review is not an application properly made under s.347 and it follows that the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Christopher Smolicz
   Member