KAMALDEEP SINGH (Migration)

[2017] AATA 1775

KAMALDEEP SINGH (Migration) [2017] AATA 2818 (5 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kamaldeep Singh

CASE NUMBER:  1710662

DIBP REFERENCE(S):  BCC2017/1197410

MEMBER:Penelope Hunter

DATE:5 July 2017

PLACE OF DECISION:  Sydney

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

Statement made on 05 July 2017 at 10:17am

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 4 May 2017, to refuse to grant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act). For the following reasons the Tribunal has found it has no jurisdiction in respect of the application.

2. The review applicant applied for the Student visa on 29 March 2017 while offshore and the review application was lodged with the Tribunal on 18 May 2017, after the applicant had returned to Australia.

3. The Tribunal has jurisdiction to review a decision under 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. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 (the Regulations) set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to refuse and cancel visas of various kinds and a range of sponsorship and nominations decisions. For offshore Student visa applications there are very limit circumstances where application can be reviewed and these relate to where the applicant is sponsored.

4. The Tribunal wrote to the review applicant on 25 May 2017 advising that it considered that the application was not a valid application, in order to have made a valid application the applicant must have been in Australia at the time the visa application was lodged, and the applicant was invited to comment or respond as to whether a valid application had been made by 8 June 2017.

5. The agent for the review applicant responded on 25 May 2017, and conceded that the applicant was not in Australia at the time that the application for the visa was lodged. However it was submitted that in the letter of refusal of the visa the Department had set out review rights and an application was made to the Tribunal the time set out in the Department correspondence.

6. The Tribunal has considered the submissions of the applicant’s agent, however the Tribunal is unable to find that it has jurisdiction in the matter. The location of the applicant at the time of the visa application was not a fact considered by the delegate.

7. For an application for a Part 5 review under the Act to be properly made, it must be for the review of a ‘Part 5 reviewable decision”. The Part 5 reviewable decisions are contained in s. 338 of the Act. Relevant to the circumstances of the applicant, s 338(2) provides that a reviewable decision is one to refuse to grant a non-citizen a visa, if the visa could be granted while the non-citizen was in the migration zone, and the non-citizen made the application for the visa while in the migration zone. (see subsections 338(2)(a) and(b) of the Act). The “migration zone’ is defined in s.5(1) of the Act and generally speaking means the Australian States and Territories.

8. There is no dispute that the applicant’s circumstances the applicant did not make the application for the Student visa while in the migration zone.

9. The agent for the applicant has also submitted that if the Tribunal does not have jurisdiction that the applicant would like to withdraw the application. However the applicant has continued to await a determination in relation to the application by a Tribunal member. A valid withdrawal can only be made prior to a determination by the Tribunal.

10. 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

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

    Penelope Hunter
    Member