1507804 (Migration)

[2015] AATA 3790

1507804 (Migration) [2015] AATA 3790 (13 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Cheuk Yin Albert Li

VISA APPLICANTS:  Ms Kwan Siu Yvetti Chau
Mr Chun Tat Michael Li

CASE NUMBER:  1507804

DIBP REFERENCE(S):  bcc2015/939112

MEMBER:Mara Moustafine

DATE:13 December 2015

PLACE OF DECISION:  Sydney

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

Statement made on 13 December 2015 at 9:56pm

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 2 April 2015, to refuse to grant Return (Residence) (Class BB) visas under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(7A) of the Act.

2.    The review application was lodged with the Tribunal on 9 June 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(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(7A), 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(2)(a) and (3A). ‘Migration zone’ is defined in s.5(1) of the Act and generally speaking means the Australian States and Territories.

4.    The material before the Tribunal indicates that the application made by the visa applicant, Ms Kwan Siu Yvetti Chau on 25 March 2015 was made by internet and is therefore considered to be made in Australia. In order to have made a valid application for review, the visa applicant must be in Australia both at the time the primary decision was made, 27 April 2015 and at the time the review application was lodged, 9 June 2015. It appeared that the applicant was not in Australia on both those dates.

5.    The Tribunal formed the preliminary view that it did not have jurisdiction in the matter because Ms Kwan Siu Yvetti Chau was not in the migration zone at the time of her primary decision. The Tribunal also noted that it appeared that no decision had been made in regard to Mr Chun Tat Michael Li, who was also included on the review application form, and that therefore his application was not valid.

6.    An officer of the Tribunal wrote to the applicant on 1 December 2015 inviting the review applicant to comment on the validity of the application for review by 15 December 2015. The letter was despatched by email.

7.    On 6 December 2015 the review applicant responded as follows:

1)   According to Ms. Kwan Siu Yvetti Chau who admitted it was her mistake to lodge in the Return Residence (Class BB) (subclass 155) Visa application on 25 March 2015 through Australian Visa Application Centre (AVAC) (Australia) whereas the said application should had been submitted through the AVAC (Hong Kong). She was too careless and did not take notice in the first instance. And as a result, the application was declined by Miro Zdravic of Department of Immigration & Broder Protection (Australia) on 2 Apr 2015. 
 2)      It was only by then she realised that she should make her application again through the AVAC Hong Kong as she was informed by your staff in the Hong Kong Australian Consulate. Unfortunately, the application was again rejected by them for reason that Ms. Chau did not meet the residency requirement as set by the Migration Department after obtaining the Australia residency.

3)   Ms Chau was meantime advised by the Department of Immigration & Border Protection (Hong Kong) that at any time she could make an application for review of the Case through your esteemed Bureau for justice. And thus such an application was made on 9 June 2015 via Migration Review Tribunal (MRT) at Level 11, 83 Clarence Street, Sydney by Ms. Chau in person. Please be also informed that when Ms. Chau submitted the aforesaid application she was only holding a Tourist Visa which only valid for three months. Ms Chau came to Australia for purposes of submitting the application for review and meantime attending my university graduation ceremony held on 10 June 2015. She was later forced to go back to Hong Kong to wait for the result of her appeal.

4)   As to the point in relation to the inclusion of Mr. Chun Tat Michael Li on the review application, it could be explained as such. Ms Chau when submitted her application on 2013 via your Australian Consulate (Hong Kong) she was kindly advised by the staff of the Consulate not to submit Mr. Chun Tat Michael Li’s application simultaneously since Ms. Chau is the primary applicant for the residence visa and if once Ms. Chau’s application should turn down by the Consulate then Mr. Li’s application would be a waste of money, i.e. in terms of a visa application fee of AUD425.00.  It would be a better option to wait for the result of her application first. And that explains why Mr. Li appeared to have no decision ever.

8.    The Tribunal has considered the applicant’s submission but finds that it provides no basis for accepting the review application lodged on 9 June 2015.

9.    Although the visa applicant was in Australia when the review application was lodged on 9 June 2015, the Department’s movement records show that she was outside Australia at the time of her primary decision on 27 April 2015. The Tribunal finds that the applicant was 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

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

Mara Moustafine
Member