Levin (Migration)

[2017] AATA 1723

Levin (Migration) [2017] AATA 1723 (9 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Rachel Ashley Levin

CASE NUMBER:  1716167

DIBP REFERENCE(S):  BCC2017/2207958

MEMBER:Katie Malyon

DATE:9 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 09 August 2017 at 4:40 pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Not in migration zone at time of application

LEGISLATION

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

Migration Regulations 1994, Schedule 2

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision by a delegate of the Minister for Immigration, dated 25 July 2017, to refuse to grant Dr Rachel Ashley Levin a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(2) of the Act.

2. The review application was lodged with the Tribunal on 26 July 2017.  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) of the Act, 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 the application for review is made: s.347(2)(a) and s.347(3) of the Act (emphasis added). The term ‘migration zone’ is defined in s.5(1) of the Act and, generally speaking, means Australia’s States and Territories.

4. Departmental records indicate that Dr Levin was not in Australia on 26 July 2017 when her application for review to the Tribunal was made.  The Tribunal formed a preliminary view that Dr Levin’s application for review was not a valid application as she was not in Australia when her review application was lodged.  On 1 August 2017, the Tribunal wrote to Dr Levin by way of email inviting comments on the validity of her application for review.  She contacted the Tribunal the same day and, during a telephone conversation with a Tribunal staff member, Dr Levin indicated she would be returning to Australia shortly and that a fresh review application would be lodged with the Tribunal after she returns to Australia.

5. The Tribunal has confirmed that the Department’s movement records show Dr Levin left Australia on 19 July 2017 and returned on 3 August 2017.  In the circumstances, it is evident that she was not in Australia on 26 July 2017 when her application for review was lodged with the Tribunal.

6. The Tribunal finds that Dr Levin 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 of the Act and it follows that the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Katie Malyon

   
   Member