CHU (Migration)

[2018] AATA 2226

CHU (Migration) [2018] AATA 2226 (22 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xin Chu

CASE NUMBER:  1811525

DIBP REFERENCE(S):  BCC2018/1419591

MEMBER:David Barker

DATE:22 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 22 May 2018 at 8:45am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Applicant not in the migration zone at time of application

LEGISLATION

Migration Act 1958, ss 5(1), 65, 338, 347, 501

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 11 April 2018, to refuse to grant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(2) of the Act.

2. The visa application was lodged with the Department of Home Affairs on 27 March 2018.  The delegate refused to grant the visa on 11 April 2018.

3. The review application was lodged with the Tribunal on 23 April 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.

   RELEVANT LAW

4. 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.

5. Section 338(2)(b) of the Act specifies a decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if the non-citizen made the application for the visa while in the migration zone.

   FINDINGS AND REASONS

6. The Tribunal formed the preliminary view that it did not have jurisdiction in this matter because the visa applicant was not in the migration zone at the time of the visa application. The Tribunal invited submissions on this issue on 4 May 2018. The Tribunal received an email from the applicant on 18 May 2018 in which she did not contest that the she had been outside the migration zone when the visa application was made.  In her email the applicant explained she thought she had effectively withdrawn the application for a Student visa which she had applied for from offshore and therefore she formed the view that a further Student visa application she made, whilst onshore in Australia, had been refused and that is why she asked the Tribunal to review the refusal decision. She indicated she has now realised she is still on a Bridging visa in relation to a Student visa application which has yet to be determined by the Department.

7. The Tribunal has noted that Subsection 338(4) of the Act deals with Bridging visas and Section 501 deals with the refusal or cancellation of a visa on character grounds. Neither of these exceptions is relevant to the current matter. The provisions set out in Subsection 338(2)(b) are however applicable.

8. The Department’s movement records show the applicant departed from Australia on 24 March 2018 and returned on 29 March 2018.  Given she lodged her application for the Student visa on 27 March 2018 the Tribunal finds that the applicant was not in the migration zone at the relevant time she lodged the application for a Student visa.  The Department’s decision to refuse the application is not a decision described in subsection 338(2).

9. 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

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

    David Barker
    Member