Gudla (Migration)

[2021] AATA 5496

Gudla (Migration) [2021] AATA 5496 (15 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sanjeev Gudla

CASE NUMBER:  2109377

HOME AFFAIRS REFERENCE(S):          BCC2020/1068707

MEMBER:Bridget Cullen

DATE:15 September 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 15 September 2021 at 4.35pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – outside migration zone at time of lodgement – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 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 23 July 2021, to refuse to grant a Skilled (Provisional) (Class VC) 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 23 July 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(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.

4. The Tribunal wrote to the applicant on 26 July 2021. On the dame day, the Tribunal received a response from the applicant’s authorised recipient, which, alongside some attachments in relation to the merits of the application for review, stated the following in the body of the email:

   “I am authorised by Sanjeev Gudla for the follow-up of his Temporary resident visa application (Subclass 485) refusal. Sanjeev received an email on 23 July 2021 stating the refusal of Temporary Resident Visa because he hadn't submitted Australian Federal Police check.
   The reason for this is that Sanjeev Gudla went back to India after applying for Temporary resident visa (subclass 485) in April 2020. After that due to international border closure and covid restrictions he couldn't come back to Australia.
   He had submitted all the necessary documents while applying for Temporary Resident Visa in April 2020. But, the Australian Federal Police check expires after 12 months from the date of application. The immigration department then asked for a Federal police check again. Since he is not in Australia, I am his authorised guardian here, I was at my cousin's place for a month when we received the letter via post. That is the reason we are unable to submit the document on time.

   He has the document available with him now. (please find the attached)

   As of now, he got stuck in India due to border closure. That is the reason he couldn't come back to Australia. Also, he could not apply for the visa from Australia.”

5. The Tribunal appreciates that the applicant has had some practical impediments to obtaining the Australian Federal Police check due to his personal movements. The Tribunal does not have discretion to modify the requirement that he be physically present in the migration zone when the application for review of a decision is made.

6. The Department’s movement records show the applicant departed 20 March 2020 and has been off shore since that date. The Tribunal finds that the applicant was not in the migration zone at the relevant time, that being when the review application was lodged on 23 July 2021. 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.

   Bridget Cullen
   Member