Chen (Migration)

[2021] AATA 4285

Chen (Migration) [2021] AATA 4285 (18 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Marcus Chen

CASE NUMBER:  1931601

HOME AFFAIRS REFERENCE(S):          BCC2019/4816422

MEMBER:Luke Hardy

DATE:18 October 2021

PLACE OF DECISION:  Sydney

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

Statement made on 18 October 2021 at 11:15am

CATCHWORDS

MIGRATION – Work and Holiday (Temporary) (Class US) visa – applicant departed Australia – applicant was not in the migration zone at the relevant time – no jurisdiction

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 Home Affairs, dated 22 October 2019, to refuse to grant a Work and Holiday (Temporary) (Class US) visa under s 65 of the Migration Act 1958 (Cth) (the Act). This decision is reviewable under s 338(2) of the Act.

2. The review application was lodged with the Tribunal on 6 November 2019. For the following reasons, the Tribunal has no jurisdiction to review the decision.

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. According to s 338(2)(a), a decision to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if the visa could be granted while the non-citizen is in the migration zone. ‘Migration zone’ is defined in s 5(1) of the Act and generally speaking means the Australian States and Territories.

4. The Department’s movement records show that the applicant in this matter departed Australia for Singapore on 28 February 2020 on a bridging visa that did not permit re-entry. The applicant wrote to the Tribunal on 12 February 2020 stating that he intended to return to Singapore to fulfill a national service reservist obligation. He wrote again on 15 April 2020 confirming that he was still in Singapore, and hence outside of the Australian migration zone, and asking if he could withdraw his review application.

5. There was further correspondence between the Tribunal and the applicant. The applicant, acknowledging that he was still outside the migration zone without a visa allowing re-entry, changed his withdrawal request to a request that the review of his case continue.

6. Since the Department’s movement records show that the applicant is absent from Australia, then under the operation of s 338(2)(a) his visa application is not Part 5-reviewable. The Tribunal finds that the applicant is not in the migration zone at the relevant time. It thus follows that the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Luke Hardy
   Member