Huang (Migration)

[2020] AATA 1432

Huang (Migration) [2020] AATA 1432 (20 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Linghan Huang

CASE NUMBER:  2004554

DIBP REFERENCE(S):  PNJ

MEMBER:Mark O'Loughlin

DATE:20 April 2020

PLACE OF DECISION:  Adelaide

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

I, Member Mark O’Loughlin, certify that this is the
  Tribunal’s statement of decision and reasons

Statement made on  20 April 2020 at  15.19 pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – applicant left Australia – not in migration zone at time of application – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 65, 338(2), 347(2)

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 2 March 2020, 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 6 March 2020. 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 applicant’s representative made submissions on his behalf in a letter dated 26 March 2020.  Those submissions state that the applicant was in China at the time he made the application for the subject student visa.

5. The Department’s movement records show that the applicant departed Australia for China on 26 December 2019 and has not returned to Australia since then. 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.

   Mark O'Loughlin
   Member