Chen (Migration)

[2021] AATA 4004

Chen (Migration) [2021] AATA 4004 (29 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xunjin Chen

CASE NUMBER:  2110597

HOME AFFAIRS REFERENCE(S):          BCC2021436658

MEMBER:Hugh Sanderson

DATE:29 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 29 September 2021 at 1:30pm

CATCHWORDS

MIGRATION – Return (Residence) (Class BB) visa – applicant departed Australia – applicant was not in the migration zone at the relevant time – no jurisdiction

LEGISLATION

Migration Act 1958, ss 5, 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 6 August 2021, to refuse to grant a Return (Residence) (Class BB) visa under s 65 of the Migration Act 1958 (Cth) (the Act). This decision is reviewable under s 338(7A) of the Act.

2. The review application was lodged with the Tribunal on 16 August 2021. 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(7A), an application for review may only be made by the non-citizen who is the subject of the decision and who is physically present in the migration zone when both the primary decision and the application for review are made: s 347(2)(a) and (3A). ‘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 the applicant departed Australia on 27 February 2020 and he has not returned to Australia since then. An officer from the Tribunal wrote to the applicant on 6 September 2021 noting as follows:

   In order to have made a valid application, you must have been in Australia at the time the delegate refused the visa application on 6 August 2021 and at the time the application was lodged with us on 16 August 2021.  It appears that you were not in Australia on those dates, 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.

5. The applicant was required to respond to this information by 20 September 2021. At the time of this decision, the Tribunal has not received any comment or response from the applicant.

6. 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

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

   Hugh Sanderson
   Member