Gurung (Migration)

[2024] AATA 3487

Gurung (Migration) [2024] AATA 3487 (19 September 2024)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Ugen Gurung

CASE NUMBER:  2208288

HOME AFFAIRS REFERENCE(S):           BCC2020/2908629

MEMBER:  Frank Russo

DATE:  19 September 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal does not have jurisdiction in relation to the applicant.

Statement made on 19 September 2024 at 2:30pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – outside migration zone at time of review application – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 347

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 7 June 2022 for review of decisions made by a delegate of the Minister for Home Affairs on 17 May 2022 to refuse to grant the visa applicants, Ms Nancy Gurung and Mr Ugen Gurung, Student (Temporary) (Class TU) Subclass 500 visas under the Migration Act 1958 (Cth) (the Act).

2. The primary applicant for the Student visa, Nancy Gurung, applied for the Student visa on 31 December 2020. Ms Gurung included her husband, Ugen Gurung (the applicant), in the application for the Student visas as a member of her family unit.

3. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The delegate in this case refused to grant the visas on the basis that Nancy Gurung as the primary applicant did not satisfy the requirements of

   cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that she was a genuine applicant for entry and stay as a student. The delegate refused to grant the applicant, Ugen Gurung, a visa on the basis that he was not a member of the family unit of a person who holds a Student visa and therefore did not satisfy the requirement in cl.500.311 of Schedule 2 to the Regulations.

4. On 28 February 2024 the Tribunal held a hearing in the application for review made by Nancy Gurung, at the conclusion of which it made an oral decision, remitting her application for the Student (Temporary) (Class TU) visa for reconsideration with the direction that she meets cl.500.212 of Schedule 2 to the Regulations.

5. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision made in respect of the applicant, Ugen Gurung.

6. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (Cth) (the Act) if an application is properly made under s 347 or s 412 of that Act, or in limited circumstances not relevant to this application, s 29 of the Administrative Appeals Tribunal Act 1975 (Cth). 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 a 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.

7. Information before the Tribunal indicates that the applicant, Ugen Gurung, was not in the migration zone when the application for review was made. Records for Ugen Gurung and his wife Nancy Gurung from the Department’s ICSE database indicate there is no movement record for Mr Gurung, as he has never entered the migration zone.

8. Accordingly, the Tribunal finds that the applicant, Ugen Gurung, was not in the migration zone at the time the application for review was made. It follows that the application for review in respect of the applicant is not a reviewable decision under s.338 of the Act and the Tribunal does not have jurisdiction in relation to the applicant, Ugen Gurung.

DECISION

1. The Tribunal does not have jurisdiction in relation to the applicant.

Frank Russo Member