Hughes (Migration)

[2022] AATA 472

Hughes (Migration) [2022] AATA 472 (4 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Susan Hughes

VISA APPLICANTS:  Mr Romel Gerna
Mrs Leonora Gerna

REPRESENTATIVE:  Ms Delia Del Rosario (MARN: 1001285)

CASE NUMBER:  2119628

HOME AFFAIRS REFERENCE(S):          BCC2020/1982394

MEMBER:De-Anne Kelly

DATE:4 March 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 04 March 2022 at 3:10pm

CATCHWORDS
MIGRATION – Bridging B (Class WB) visa – Subclass 020 (Bridging B) – standing to apply – review applicant not a visa applicant – visa applicants left Australia and not in migration zone when refusal decision and review application made – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 338(2), 347(2)(a), (3)

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 1 December 2021, to refuse to grant Bridging B (Class WB) visas 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 20 December 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 present applicant is not one of the two visa applicants and therefore does not have standing to apply for a review application.

5. The Department’s movement records show the visa applicants left Australia on 27 November 2021 and the visa application was refused in 1 December 2021 while the review application date was 20 December 2021. The visa applicants were not physically in the migration zone at the time of the visa application and the review application.

6. On 11 January 2022, the Tribunal wrote to the applicant and invited comment by 25 January 2022 on whether the application for review was valid since the applicant did not have standing to apply and the visa applicants were outside Australia when the review application was lodged.

7. There were numerous responses to the invitation outlining the difficulties the business sponsor and visa applicants face as a result of this decision however they do not address the fact that the application does not meet the legislative requirements.

8. 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

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

   De-Anne Kelly
   Member