Lazaro Vasconcellos (Migration)

[2023] AATA 3844

Lazaro Vasconcellos  (Migration) [2023] AATA 3844 (19 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Mariana Lazaro Vasconcellos

CASE NUMBER:  2311677

HOME AFFAIRS REFERENCE(S):          BCC2023/2519594

MEMBER:P. Maishman

DATE:19 October 2023

PLACE OF DECISION:  Perth

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

Statement made on 19 October 2023 at 2:26pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – outside migration zone at time of lodging review application – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 347

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 18 July 2023, to refuse to grant a GK – Temporary Skill Shortage (Class GK) visa 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 7 August 2023. 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. In response to the Tribunal’s invitation to comment on the potential invalidity of her review application, the applicant said she had long planned to travel to visit her parents who she hadn’t seen for six years due to the Covid-19 pandemic. Neither she nor her sponsor were aware she needed to be in Australia to lodge a review. Her migration agent was aware of her holiday plans but did not mention the need for her to be in Australia to lodge an appeal. The applicant submits she has resided in Australia for a decade and is responsible and law-abiding. Her skills contribute to an occupation facing significant shortages of skilled workers. Her inability to address the appeal properly was largely due to unforeseen circumstances surrounding the refusal and the costs associated with reviewing the decision.

5. The Tribunal acknowledges the difficulty the applicant finds herself in with the timing of the decision, the time limits of making a review application, and her reasonable travel expectations. However the Tribunal has no discretion to take into account these unfortunate circumstances.

6. The Department’s movement records show the applicant departed Australia on 23 July 2023 and returned to Australia on 19 August 2023. 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

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

   P. Maishman
   Member