Lam (Migration)

[2021] AATA 353

Lam (Migration) [2021] AATA 353 (9 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hei Man Lam

CASE NUMBER:  2008052

DIBP REFERENCE(S):  BCC2019/789610

MEMBER:David Barker

DATE:9 February 2021

PLACE OF DECISION:  Sydney

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

Statement made on 09 February 2021 at 11:37am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – applicant not in migration zone when application made – COVID-19 travel restrictions – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 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 Immigration, dated 20 April 2020, to refuse to grant a Return (Residence) (Class BB) visa under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(7A) of the Act.

2. The review application was lodged with the Tribunal on 9 May 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 and generally speaking means the Australian States and Territories. In this case, the review application was made by the applicant, but information from the Department of Home Affairs indicates that he has been offshore from Australia since 31 August 2015.

4. On 20 May 2020 the Tribunal wrote to the applicant advising him of the problems with the application for review and invited any comments from him, which he would care to make, in writing by 3 June 2020.  He responded by emails, on 26 May 2020, in which he explained that:

   ·Due to the Covid 19 pandemic and travel restrictions imposed by the Australian government he is unable to travel to and stay in Australia on or before 20 April 2020, or after to lodge a review application;

   ·His only option was to lodge an online review application;

   ·He is a practising podiatrist with his qualifications  recognised in Australia and the United kingdom;

   ·His Hong Kong podiatry business has had  ties  for over 10 years to an Australian foot care business located in Queensland;

   ·He is planning to set up a podiatry clinic in Australia;

   ·His sister-in-law and her partner are permanent residents in Australia.

5. The Tribunal has reviewed the applicant’s response to the natural justice letter and acknowledges the difficulties with travel to Australia in the context of the current coronavirus pandemic.  The Tribunal acknowledges the other information provided by the applicant  in his response emails. However, the Department’s movement records show that the applicant  departed Australia on 31 August 2015 and has not returned since that date.  He was therefore not in the Australian Migration Zone, either at the time of the Department’s decision, on 20 April 2020,  to refuse to grant a Return (Residence) (Class BB) visa, or on the date on which he lodged a review application, namely on 9 May 2020. 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.

   David Barker
   Member