Jackson (Migration)

[2023] AATA 2042

Jackson (Migration) [2023] AATA 2042 (13 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Alexea Reid Jackson

REPRESENTATIVE:  Mr Timothy David Cook (MARN: 1802688)

CASE NUMBER:  2207998

HOME AFFAIRS REFERENCE(S):          BCC2022/1310655

MEMBER:Jane Marquard

DATE:13 June 2023

PLACE OF DECISION:  Sydney

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

Statement made on 13 June 2023 at 2:31pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – outside migration zone at time of decision – no reviewable decision – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 338, 347
Migration Regulations 1994 (Cth), r 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 1 June 2022 for review of a decision by the Department of Home Affairs to cancel a Partner (Provisional) (Class UF) (Subclass 309) visa. That decision was made by the Department of Home Affairs on 1 April 2022.

2. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application for review.

3. 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). Sections 338 and 411 of the Act and reg 4.02(4) of the Migration Regulations 1994 (Cth) set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal.

4. A review of a decision to cancel a visa is reviewable if the review applicant is physically present in the migration zone when the decision was made (s 338(3)) of the Act). Information before the Tribunal indicates that the applicant was not in the migration zone when the decision was made. The Department noted in the decision dated 1 April 2022 that departmental migration records indicated that the applicant was outside the migration zone at the time of decision. On 2 April 2022 the Department wrote to the applicant to notify her of the decision dated 1 April 2022. The Department noted in the letter that she had no right of review of the decision to the Tribunal, as she was outside the migration zone at the time of decision. On 30 May 2023 the Tribunal wrote to the applicant to advise her that a no jurisdiction decision would be made on this basis and inviting her to contact the Tribunal with any queries.

5. As the applicant was not in the migration zone at the time of the primary decision, the decision is not a reviewable decision. It follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Jane Marquard
   Member