Bibby (Migration)

[2020] AATA 1427

Bibby (Migration) [2020] AATA 1427 (10 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Richard Oliver Bibby

CASE NUMBER:  1929896

DIBP REFERENCE(S):  BCC2018/1571223

MEMBER:Wendy Banfield

DATE:10 February 2020

PLACE OF DECISION:  Sydney

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

Statement made on 10 February 2020 at 8:51pm

CATCHWORDS

MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – applicant not in the migration zone at time of the primary decision and review application – No jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 5, 65, 338, 347
Migration Regulations 1994 (Cth), r 4.02

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 9 October 2019, to refuse to grant a Return (Residence) (Class BB) visa under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(7A) of the Act.

2. The review application was lodged with the Tribunal on 22 October 2019. 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(7A), an application for review may only be made by the non-citizen who is the subject of the decision and who is physically present in the migration zone when both the primary decision and the application for review are made: s.347(2)(a) and (3A). ‘Migration zone’ is defined in s.5(1) of the Act and generally speaking means the Australian States and Territories.

4. The Tribunal wrote to the applicant on 10 December 2019 inviting him to comment on the validity of the application for review. The applicant was advised that in order to have made a valid application, he must have been in Australia at the time the delegate refused the visa application on 9 October 2019 and at the time the application was lodged with the Tribunal on 22 October 2019. The applicant responded on 6 January 2020 and included his inquiry to the Department about his situation prior to applying for the visa. The applicant advised he had thought he could not apply for another visa to return to Australia at that time. The applicant submitted further evidence in support of his application for review on 6 and January 2020. He did not dispute that he had been off-shore at the time his visa was refused and when he applied for a review of the decision.

5. The Department’s movement records show that at the time of the decision and the time the review application was submitted the applicant was not in Australia. Therefore, the Tribunal 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.

   Wendy Banfield
   Member