Keng Seng (Migration)

[2021] AATA 1585

Keng Seng (Migration) [2021] AATA 1585 (18 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tay Keng Seng

CASE NUMBER:  2003216

HOME AFFAIRS REFERENCE(S):          BCC2019/4307317

MEMBER:Michael Cooke

DATE:18 May 2021

PLACE OF DECISION:  Sydney

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

Statement made on 18 May 2021 at 4:40pm

CATCHWORDS
MIGRATION – Return (Residence) (Class BB) – Subclass 155 (Five Year Resident Return) – applicant not in migration zone at time of delegate’s decision and when application for review made – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 338(7A), 347(2)(a), (3A)

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 30 January 2020, to refuse to grant a Return (Residence) (Class BB) visa under s 65 of the Migration Act 1958 (Cth) (the Act). This decision is reviewable under s 338(7A) of the Act.

2. The review application was lodged with the Tribunal on 19 February 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(7A), an application for review may only be made by the non-citizen who is the subject of the decision and who is physically present in the migration zone when both the primary decision and the application for review are made: s 347(2)(a) and (3A). ‘Migration zone’ is defined in s 5(1) of the Act. Generally speaking, it means the Australian States and Territories.

4. On 19 June 2020 an Invitation to Comment on Validity was sent to the applicant as follows:

   I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Return (Residence) (Class BB) visa.

   In order to have made a valid application, you must have been in Australia at the time the delegate refused the visa application on 30 January 2020 and at the time the application was lodged with us on 19 February 2020.

   It appears that you were not in Australia on those dates and I am, therefore, of the view that your application is not a valid application. However, this is a matter which must be determined by a Member.

5. The applicant responded to the Invitation as follows:

   I refer to your letter dated 19/06/2020.

   I have no knowledge that we have to be physically present in Australia and can only appeal online.

   I look forward to your advise what recourse I can take as the appeal time has expired. The system should not have accepted the application at the first instance

   This is pure injustice. kindly let me know what can I do.

   Kindly refund all payment made for the amount of $1,787 or i will request the credit card to stop payment due to no review of appeal can be made and as there is no consideration.

   Enclosed a copy of review application receipt dated 19/02/2020.

   Yours faithfully

   Keng Seng Tay

6. The Department’s movement records show that the applicant was not onshore in Australia at time of the refusal of the application for the visa. He was not onshore at the time of the lodgement of the review application either.

7. The Tribunal finds that the applicant was not in the migration zone at the relevant times. 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

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

   Michael Cooke
   Senior Member