Gill (Migration)

[2019] AATA 6201

Gill (Migration) [2019] AATA 6201 (4 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaspinder Pal Singh Gill

CASE NUMBER:  1920877

DIBP REFERENCE(S):  BCC2019/3209748

MEMBER:Meredith Jackson

DATE:4 November 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 04 November 2019 at 2:13pm

CATCHWORDS
MIGRATION – Student (Temporary)(Class TU) visa – Subclass 500 (Student) – not physically present in migration zone – internet application – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 338(2), 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 Immigration, dated 10 July 2019, 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 review application was lodged with the Tribunal on 30 July 2019. 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(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 the visa is made. ‘Migration zone’ is defined in s.5(1) of the Act and generally speaking means the Australian States and Territories.

4. The applicant applied for the visa on 26 June 2019. Departmental records indicate the applicant was absent from Australia at the time of the visa application, that is, between 25 June 2019 and 29 June 2019.

5. On 1 October 2019, in response to a natural justice letter sent by the Tribunal inviting the applicant to comment on the validity of his application for review, the applicant argued that he made the application for the visa while in the migration zone, and, because it was an Internet application the application should be taken as made in Australia and the decision should be reviewable.

6. The Tribunal has considered the applicant’s argument in relation to the application made outside the migration zone and via the Internet. The Tribunal finds that the applicant was not in the migration zone at the relevant time as required by s.338(2) and as such, the application for review is not an application properly made under s.347. It follows that the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Meredith Jackson
   Member