1603315 (Migration)

[2016] AATA 3943

1603315 (Migration) [2016] AATA 3943 (27 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhuotong Huang

CASE NUMBER:  1603315

DIBP REFERENCE(S):  CLFR2016/11189

MEMBER:Belinda Mericourt

DATE:27 May 2016

PLACE OF DECISION:  Sydney

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

Statement made on 27 May 2016 at 2:20pm

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 20 February 2016, to cancel a Visitor (Class FA) visa under the Migration Act 1958 (the Act). This decision is reviewable under s.338(3) of the Act.

2. The review application was lodged with the Tribunal on 13 March 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. In the case of a decision described in s.338(3), an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s.347(2)(a) and (3). ‘Migration zone’ is defined in s.5(1) of the Act and generally speaking means the Australian States and Territories.

4. On 29 April 2016 the Tribunal wrote to the applicant inviting him to comment on the validity of the application as the decision to cancel his visa was made whilst he was in immigration clearance.

5. The Department’s movement records show that the applicant was in immigration clearance when his visa was cancelled on 19 February 2016. The Tribunal therefore 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

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

   Belinda Mericourt
   Member