1515450 (Migration)

[2016] AATA 3252

1515450 (Migration) [2016] AATA 3252 (15 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr MOHAMMED NABEEL ZUBAIR
Mrs Naziabanu Noorullah Shaikh
Master Mohammed Nubaid Nabeel

CASE NUMBER:  1515450

DIBP REFERENCE(S):  BCC2014/1057597

MEMBER:Alan Duri

DATE:15 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 15 February 2016 at 11:13am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Zubair is a Sri Lankan national who is currently in the United Arab Emirates.  He has never been to Australia.

2. On 24 April 2014 Mr Zubair and his wife and child applied for a Subclass 189 skilled visa.

3. On 4 July 2014 the department refused to grant the visa.

4. On 12 November 2015 Mr Zubair applied for review of the department’s decision. For the following reasons, the tribunal has found that it has no jurisdiction in respect of this application.

5. The tribunal has jurisdiction to review a decision under the Migration Act 1958 (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. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the tribunal and the circumstances in which they are reviewable.

6. In this case Mr Zubair was outside the migration zone when he lodged the visa application.  In such circumstances, in order for a decision to be reviewable, s.347(3A) of the Act provides that the applicant must be in the migration zone both at the time of the primary decision and at the time at the time of the AAT review application.  The term “migration zone” is defined in s.5 of the Act and essentially means the area consisting of the Australian States, Territories, Australian resource installations and Australian sea installations. 

7. As noted above Mr Zubair has never been to Australia.  There is no evidence that he was in the migration zone at the time of the primary decision (4 July 2014) or at the time of the review application to the AAT (12 November 2015).  It follows that under s.347(3A), the decision to refuse the Subclass 189 visa is not reviewable by the AAT.

8. At any rate Mr Zubair’s application for review does not meet the statutory time frames.

9. As the delegate’s decision is not reviewable in these circumstances it follows that the application for review was not properly made and the tribunal does not have jurisdiction in this matter.

   DECISION

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

    Alan Duri
    Member