Billi (Migration)

[2018] AATA 3022

Billi (Migration) [2018] AATA 3022 (6 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Kemallia Billi

CASE NUMBER:  1817250

DIBP REFERENCE(S):  CLF2016/59261

MEMBER:Sean Baker

DATE:6 July 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 06 July 2018 at 12:26pm

CATCHWORDS

Migration – Bridging B (Class WB) visa – Subclass 020 (Bridging B) – applicant not in the migration zone at time of review application – no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 338, 347
Migration Regulations 1994, r 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 12 June 2018 for review of the refusal of Bridging B (Class WB) subclass 020 visa. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

2. The question that arises in this case is whether the Tribunal has jurisdiction.

3. The Tribunal formed the preliminary view that it did not have jurisdiction because the applicant was not in the migration zone when the application for review was lodged with the Tribunal. The Tribunal wrote to the applicant inviting comment on this issue. The applicant did not respond directly to this issue.

4. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

5. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 of the Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Section 338 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions relevant to this case that are reviewable in the Migration and Refugee Division of the Tribunal and the circumstances in which they are reviewable. A decision to refuse a Bridging B (Class WB) subclass 020 visa is reviewable under s.338(2) of the Act if the applicant applied to the Tribunal while the applicant was physically present in the migration zone: s.347(3)

6. The Department's movement records indicate that the applicant departed Australia on 28 May 2018 and was outside Australia on the day that the application for review was lodged on 12 June 2018. The Tribunal finds that the applicant was not physically present in the migration zone when the application for review was made and therefore did not comply with s.347(3).

7. 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

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

   Sean Baker
   Member