Ho (Migration)

[2018] AATA 2133

Ho (Migration) [2018] AATA 2133 (18 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Nell Zi Ting Ho

CASE NUMBER:  1809687

DIBP REFERENCE(S):  BCC2018/682676 PNJ

MEMBER:Stephen Conwell

DATE:18 May 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 18 May 2018 at 4:24pm

CATCHWORDS

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

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 of a delegate of the Minister for Immigration, dated 5 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 review application was lodged with the Tribunal on 7 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.

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 Department’s movement records show that the applicant was not in Australia at the time of her Visa application.  Departmental records indicate that the applicant left Australia on 14 December 2017 and returned on 20 February 2018.  The applicant made her Visa application on 9 February 2018, and was not in the Migration zone at the time of so doing.

5. The Tribunal finds that the applicant was not in the migration zone at the relevant time. 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

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

   Stephen Conwell
   Member