1603585 (Migration)

[2016] AATA 3984

1603585 (Migration) [2016] AATA 3984 (16 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Deepinder Singh
Mrs Rajwinder Kaur
Mr Mandeep Singh

CASE NUMBER:  1603585

DIBP REFERENCE(S):  R15/12019692

MEMBER:Katie Malyon

DATE:16 June 2016

PLACE OF DECISION:  Sydney

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

Statement made on 16 June 2016 at 10:21am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 17 March 2016 for review of a decision by a delegate of the Minister for Immigration, dated 21 January 2016, to refuse to grant the applicants Return (Residence) (Class BB) Subclass 155 visas under s.65 of the Migration Act 1958 (the Act).  For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

2. The Tribunal has jurisdiction to review a decision under 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 (the Regulations) 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.

3. A decision to refuse a Return (Residence) (Class BB) visa is reviewable under s.338(7A) of the Act. 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) of the Act, an application for review may only be made by the non-citizen who is the subject of that decision: s.347(2)(a) of the Act. Section 347(3A) provides that if the Part 5-reviewable decision was covered by s.338(7A) of the Act, 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. The term ’migration zone’ is defined in s.5(1) of the Act and generally speaking means the Australian States and Territories. ’

4. The Tribunal formed the preliminary view that it did not have jurisdiction in this case.  The Tribunal wrote to the applicants on 2 June 2016 and invited their comments.

5. The Tribunal received a response from Mr Deepinder Singh on behalf of his family.  He gave multiple reasons as to why he has spent less than 20 days in Australia since his Skilled Independent Subclass 136 permanent residence visa was granted on 17 April 2008.  The reasons range from his job satisfaction, financial circumstances and homesickness to his father’s health.  Mr Singh also states multiple reasons as to why he has reapplied for permanent residence, in particular, his wish for his son, Mandeep Singh, to have better opportunities. 

6. In order for the applicants to have made a valid application for review, the applicants must have been in Australia both at the time the delegate refused the visa application on 21 January 2016 and at the time the application for review was lodged with the Tribunal on 17 March 2016.   At the time of the delegate’s decision, on 21 January 2016, the applicants were outside Australia.  The applicants were also outside Australia at the time the application for review was lodged on 17 March 2016.

7. As the decision that is the subject of the application for review is a decision covered by s.338(7A) of the Act, the application for review could only be made by an applicant who was physically present in Australia zone both at the time when the decision was made and when the application for review was made. In the present case, the applicants were not physically present in Australia at the time when the delegate’s decision was made and were not physically present in Australia when the application for review was made. As such, the application for review is not an application properly made under s.347 of the Act and it follows that the Tribunal does not have jurisdiction in this matter.

8. 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

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

   Katie Malyon

   
   Member