Bokhari (Migration)

[2020] AATA 3413

Bokhari (Migration) [2020] AATA 3413 (19 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammad Ubaidullah Bokhari

CASE NUMBER:  2009762

DIBP REFERENCE(S):  BCC2020/655938

MEMBER:Wan Shum

DATE:19 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 19 August 2020 at 10:59am

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – applicant not in migration zone when application for review made – COVID-19 travel restrictions – advised by department before restrictions applied that he could travel –unable to return after restrictions applied – no jurisdiction

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

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 22 May 2020, 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(2) of the Act.

2. The review application was lodged with the Tribunal on 11 June 2020. 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. There are no exceptions to this requirement.

4. The information before the Tribunal indicates that the applicant was not in Australia on 11 June 2020. The applicant was invited to comment on the opinion of an officer of the Tribunal that his application for review was not valid as it appeared that he was not in Australia on the date the application was lodged.

5. In response, the Tribunal received an email from his representative essentially confirming that the applicant had returned to India after applying for a Residence Visa due to unfortunate circumstances arising from the spread of COVID19 pandemic to be with his family. The applicant was advised by the Department that he can travel. The representative advised that the applicant left in early March before the lockdown took place and remains outside Australia. Due to COVID19, he was unable to be physically present but will return as soon as flights open. Reference was made to the applicant holding a visa that is valid until January 2020 (although the information before the Tribunal indicates that the relevant date is January 2021) and that he would return “once the situation is back to normal”.  A request was made to please reconsider his application for validity and referred to this being a special case due to these unforeseen circumstances.

6. The Department’s movement records show that the applicant departed Australia on 9 March 2020. There is no dispute that he was not in Australia when the application for review was lodged. The Tribunal finds that the applicant was not in the migration zone at the relevant time. The requirement that the applicant be in the migration zone when the application for review was lodged is mandated by law and the Tribunal has no discretion to waive that requirement, even in exceptional circumstances where there are “unforeseen” reasons that prevent his return to Australia. In the circumstances, 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

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

   Wan Shum
   Member