DALAL (Migration)

[2018] AATA 3453

DALAL (Migration) [2018] AATA 3453 (9 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs JACQUILINE ELLEN DALAL

VISA APPLICANT:  Mr SHOBHIT DALAL

CASE NUMBER:  1819958

DIBP REFERENCE(S):  

MEMBER:Russell Matheson

DATE:9 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal does not have jurisdiction in this matter

Statement made on 09 August 2018 at 11:15am

CATCHWORDS

MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – applicant not in the migration zone at time of review application – no jurisdiction

LEGISLATION

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision made by a delegate of the Minister for Immigration on 26 June 2018 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) Subclass 100 visa under s.65 of the Migration Act 1958 (the Act). The decision is reviewable under s.338(7A) of the Act.

2. The review application was lodged with the Tribunal on 9 July 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(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 delegate’s decision record, a copy of which was provided to the Tribunal with the review application, indicates the visa applicant departed Australia on a 6 April 2016 and has not returned since that date.

5. On 17 July 2018 the Tribunal wrote to the person who had applied for review to invite her to comment on the validity of the application for review on the basis of information before the Tribunal that indicates the visa applicant was not in Australia at the time the delegate refused the application on 26 June 2018 or at the time the review was lodged on 9 July 2018. No response to the Tribunal’s letter has been received to date.

6. As the decision that is the subject of the review application is a decision covered by s.338(7A), the application for review could only be made by the non-citizen who is the subject of the decision (the visa applicant) who must be physically present in the migration zone when both the primary decision and the application for review are made. In the present case, the review application was made by the sponsor, rather than the visa applicant and the visa applicant was not in the migration zone at either the time the primary decision was made or when the review application was made. 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

   Russell Matheson
   Member