BIN MUDA (Migration)

[2017] AATA 2015

BIN MUDA (Migration) [2017] AATA 2015 (17 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohd Ridzuan BIN MUDA

CASE NUMBER:  1722136

DIBP REFERENCE(S):  CLF2017/27000

MEMBER:Helena Claringbold

DATE:17 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 17 October 2017 at 3:03pm

CATCHWORDS

Migration – No jurisdiction - Bridging B (Class WB) visa - 020 (Bridging B) – Not present in migration zone when application for review made – Departed Australia – No evidence of return

LEGISLATION

Migration Act 1958, ss 5(1), 65, 338(2), 347(2), 347(2)(a) and (3)

Migration Regulations 1994, Schedule 2

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 31 August 2017, to refuse to grant a Bridging B (Class WB) visa 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 18 September 2017. 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. In order to have made valid application the applicant must have been in Australia at the time the review application was lodged with the Tribunal, which was on 18 September 2017. 

5. On 27 September 2017, the Tribunal wrote to the applicant and told him that it appeared that he was not in Australia on 18 September 2017.  The Tribunal invited the applicant to make comment about the validity of the application for review with a response to be with the Tribunal by 11 October 2017.

6. On 11 October 2017, the applicant responded and stated the following: His travel out of Australia was urgent and due to his mother’s health and subsequent death.  In addition, the applicant has three children who are studying in Australia.  He will need to organise the welfare of his youngest age son.  Also he stated that he is scheduled to appear before the Tribunal on 24 October 2017. 

7. The Department’s movement records show that the applicant departed Australia on           31 August 2017 and there is no evidence before the Tribunal that he has returned to Australia since that date. 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

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

   Helena Claringbold
   Member