chambrier (Migration)

[2017] AATA 1261

chambrier (Migration) [2017] AATA 1261 (26 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vincent Chambrier

CASE NUMBER:  1709729

DIBP REFERENCE(S):  Papers

MEMBER:Angela Cranston

DATE:26 July 2017

PLACE OF DECISION:  Sydney

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

Statement made on 26 July 2017 at 4:56pm

CAT CHWORDS

Migration – Cancellation – Evisitor visa – Subclass 651 – Not in migration zone at time of application – Not reviewable

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29

Migration Act 1958, ss 338, 347, 411, 412

Migration Regulations 1994, Schedule 2, r 4.02(4)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.    An application was made to the Tribunal on 4 May 2017 for review of a decision to cancel a subclass 651 evisitor visa made on 25 April 2017 at Sydney International Airport. The departmental records indicate that the applicant departed Australia on 26 April 2017.

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

3. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. These include a decision to cancel a visa (s.338(3) but they do not include decisions made in relation to a non-citizen who is not physically present in the migration zone when the decision is made. “Migration zone” means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations but does not include a proclaimed airport.

4.    In addition, if the reviewable decision was covered by subsection 338(3), an application for review may only be made by a non-citizen physically present in the migration zone (s.347(3)and who is the subject of that decision when the application for review is made (s 347(2)(a)).

5.    The Tribunal wrote to the applicant on 5 June 2017 as follows:

In order to have made a valid application you must have been in Australia at the time the application was lodged with us on 4 May 2017. It appears that you were not in Australia on that date and I am therefore of the view that your application is not a valid application. However this is a matter which must be determined by a member.

6.    The applicant responded stating the following:

Can I put my girlfriend in the application she still is in Australia also I didn’t know and didn’t read anywhere I couldn’t do the application from overseas.

And all this thing was really quick because I only stay 24h in Australia when the cancel my tourist visa because they sent me back to France after the cancel of my visa. I was in the airport then to the immigration jail so I couldn’t do anything and they didn’t leave me apply for anything, I even have a lawyer in Australia and they didn’t leave me speak with her to save my case.

If I cannot put my girlfriend what about the money? Do you think I could have a refund?

FINDINGS

7.    Information before the Tribunal also indicates that the applicant was at Sydney International Airport and not in the migration zone when the departmental decision was made. In addition, his girlfriend is not the subject of that primary decision and he was not physically present in the migration zone when the application for review was made.

8.    As the applicant was not in the migration zone at the time of the primary decision, the decision is not a reviewable decision. It follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

DECISION

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

Angela Cranston
Member