Bui (Migration)

[2018] AATA 1128

Bui (Migration) [2018] AATA 1128 (19 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kim Ngoc Bui

Mrs Kim Ngoc Bui
Mr Tin Dat Tran

CASE NUMBER:  1807687

DIBP REFERENCE(S):  CLF2016/49973

MEMBER:Margie Bourke

DATE:19 April 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 19 April 2018 at 12:26pm

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visas – Subclass 836 (Carer) – Visa applicants outside of the migration zone – Application not properly made under s.347

LEGISLATION
Migration Act 1958, ss 5, 65, 338, 347

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 1 March 2018, to refuse to grant Other Family (Residence) (Class BU) 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 21 March 2018. 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 the application for review received at the tribunal on 21 March 2018 the applicant Mrs Kim Ngoc Bui recorded her address on the Application for Review of Decision form as an address in Vietnam.   A second application form provided with the payment the same day recorded the applicant’s sister Mrs Kim Dung Bui as the person applying for review, and gave her Melbourne address. This person is not the visa applicant. 

5. The tribunal wrote to the visa applicant who had lodged the initial application for review, and who is the person entitled to apply for a review of the Department’s decision for this visa Subclass, by letter dated 4 April 2018, addressed to her nominated representative. The applicant’s sister Mrs Kim Dung Bui advised the tribunal in a telephone conversation on 10 April 2018 and in writing by a letter dated 11 April 2018, that the applicant, Mrs Kim Ngoc Bui, was in Vietnam at the time of application.  The letter was signed above the name Kim Dung Bui, but headed Dung Thi Bui; the tribunal has inferred that the letter is from the person named as the person who has signed it. 

6. Mrs Kim Dung Bui advised that the applicant, Mrs Kim Ngoc Bui had returned to Vietnam with her son due to her mother’s health and subsequent death, and that both the visa applicants’ visas had expired while they were in Vietnam. The tribunal was provided with the death notice.  Mrs Kim Dung Bui advised that the applicant, Mrs Kim Ngoc Bui, also returned to Vietnam as she could not afford the cost of her son’s education in Australia. The tribunal is satisfied, based on the information provided to it, that the two visa applicants were not in Australia, and not in the migration zone, at the time of the application for review.

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.

   Margie Bourke
   Member