Lee (Migration)

[2021] AATA 4915

Lee (Migration) [2021] AATA 4915 (17 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kyungpyo Lee

CASE NUMBER:  2113816

HOME AFFAIRS REFERENCE(S):          BCC2019/4837217

MEMBER:K. Chapman

DATE:17 December 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 17 December 2021 at 10:48am

CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – applicant not in migration zone when application made – returned to home country for personal and family reasons – last departed before COVID-19 travel restrictions commenced – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 65, 338(2), 347(2)(a), (3)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 8 October 2021 for review of a decision of a delegate of the Minister for Home Affairs to refuse to grant a Business Skills (Provisional) (Subclass EB 188) visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’). 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.

2. The applicant applied for the Subclass 188 visa while onshore on 26 September 2019. On 20 September 2021, the delegate refused to grant the Subclass 188 visa to the applicant. The Tribunal is satisfied that this primary decision was notified to the applicant by email sent to his authorised recipient. On 8 October 2021, the applicant applied electronically to the Tribunal for review of the visa refusal decision, listing the same authorised recipient. The applicant also provided a copy of the delegate’s decision with the review application. Subsection 338(2) of the Act is relevant to this application for review, given the particulars of the Subclass 188 visa application made.

3. Subsection 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 means the Australian States and Territories.

4. The Department’s movement records show that the applicant last departed Australia on 28 September 2019. The applicant, therefore, was not in the migration zone at the time the application for review was lodged with the Tribunal on 8 October 2021. In order to afford the applicant natural justice, by correspondence dated 10 November 2021 despatched to his authorised recipient, the Tribunal Registry wrote to him inviting his comment by 24 November 2021 on the validity of the application for review. This correspondence outlined that the applicant appeared to be offshore at the time when the application for review was lodged with the Tribunal.

5. On 24 November 2021, the Tribunal received email correspondence from the applicant’s authorised recipient, outlining that the applicant was offshore for personal and family reasons at the time of the visa refusal and was prevented by the COVID-19 travel restrictions from returning to Australia to lodge the review application. The Tribunal has carefully considered this submission.

6. It is worth pausing to reflect that the applicant last departed Australia on 28 September 2019, prior to the commencement of the COVID-19 pandemic. Whilst the Tribunal acknowledges the recent difficulties for international travel experienced by the applicant, it notes that it must apply the law to the facts of this matter in an impartial and dispassionate fashion, even if the result is upsetting to him.

7. Following careful consideration of the evidence, the Tribunal finds that the applicant was not in the migration zone at the time the review application was made. As the decision that is the subject of the review application is a decision covered by s.338(2), the application for review could only be made by the applicant if he was inside the migration zone at the time the review application was made, pursuant to s.347(3).

8. Therefore, the delegate’s decision in the circumstances is not a reviewable decision under s.338(2) or under any of the other subparagraphs of s.338 and s.347. As such, the application for review is not an application properly made and it follows that the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   K. Chapman
   Member