1604153 (Migration)

[2016] AATA 3939

1604153 (Migration) [2016] AATA 3939 (27 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Zainab Abid Maza
Miss Tasneem Nooruddin Merchant

CASE NUMBER:  1604153

DIBP REFERENCE(S):  R14/13004308

MEMBER:Denise Connolly

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 8:49am

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 23 December 2015, to refuse to grant New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visas under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(2) of the Act.

2. The review application was lodged with the Tribunal on 25 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(2), 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. The Department’s movement records show that neither applicant was onshore, in the migration zone, at the time the application for review was made.

5. On 14 April 2016 the Tribunal invited the applicants to comment on its preliminary view that the review application is not valid because the applicants were not in Australia on 25 March 2016, the day the review application was made.

6. In response the applicants’ representative submitted that the case should be treated with the highest priority and the review should be undertaken because of the compelling circumstances in this case. Various documents were provided, which the Tribunal has considered, but no evidence was provided demonstrating the applicants were in the migration zone when the application was made. The Tribunal has considered the submission however it does not have jurisdiction to review a matter where the application is not valid.

7. The Tribunal finds that the applicants were 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

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

   Denise Connolly
   Member