1600037 (Migration)

[2016] AATA 3364

1600037 (Migration) [2016] AATA 3364 (18 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Wai Mun Wong

CASE NUMBER:  1600037

DIBP REFERENCE(S):  BCC2015/2463851

MEMBER:Dione Dimitriadis

DATE:18 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 18 February 2016 at 1:27pm

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 1 September 2015, to refuse to grant a Return (Residence) (Class BB) visa under s.65 of the Migration Act 1958 (the Act). The delegate informed the applicant in the notification letter that there is no right of merits review for this decision. 

2. The review application was lodged with the Tribunal on 4 January 2016. 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. A decision to refuse a Return (Residence) (Class BB) visa is reviewable under s.338(7A) of the Act.

4. 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 that decision (s.347(2)(a)). Section 347(3A) provides that if the Part 5-reviewable decision was covered by s.338(7A), an application for review may only be made by a non-citizen who was physically present in the migration zone at the time when the decision was made and is physically present in the migration zone when the application for review is made.

5. The Tribunal formed the preliminary view that it did not have jurisdiction in this case. The Tribunal wrote to the applicant on 12 January 2016 and invited her comments.

6. The Tribunal received a response from the applicant who stated that the online application checklist did not state that the application has to be done onshore. The “VFS Global and documentation request” also did not mention that the application for review has to be done onshore. The applicant thought that as she is returning to Australia for good, she would return on a RRV (Resident Return visa) and not enter Australia on a Tourist E-visa.

7. In order for the applicant to have made a valid application for review, the applicant must have been in Australia at the time the delegate refused the visa application on 1 September 2015 and at the time the application for review was lodged with the Tribunal on 4 January 2016.   

8. At the time of the delegate’s decision, on 1 September 2015, the applicant was outside Australia. The applicant was also outside Australia at the time the application for review was lodged 4 January 2016.

9. As the decision that is the subject of the application for review is a decision covered by s.338(7A), the application for review could only be made by the applicant who was physically present in the migration zone at the time when the decision was made and is physically present in the migration zone when the application for review is made.

10. In the present case, the applicant was not physically present in the migration zone at the time when the delegate’s decision was made and was not physically present in the migration zone when the application for review was made.

11. 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

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

    Dione Dimitriadis
    Member