Lorando Gomes Da Silva (Migration)

[2018] AATA 3430

Lorando Gomes Da Silva (Migration) [2018] AATA 3430 (28 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gustavo Lorando Gomes Da Silva

CASE NUMBER:  1822663

DIBP REFERENCE(S):  BCC2018/2105364

MEMBER:Meredith Jackson

DATE:28 August 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 28 August 2018 at 11:01am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – applicant not in the migration zone at time of review application – no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 338, 347, 411, 412
Migration Regulations 1994, r 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 6 August 2018 for review of the delegate’s decision of 19 July 2018 to refuse to grant the visa. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

2. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal and the circumstances in which they are reviewable. They include decisions to refuse visas of various kinds.

3. Review of a decision on a Student (Temporary) (class TU) Student (subclass 500) visa is a reviewable decision under s.338 of the Act if the applicant was in the migration zone at the time of the visa application or in other circumstances not relevant in this case.

4. On 15 May 2018 the review applicant Gustavo Lorando Gomes Da Silva lodged a visa application for a Student (Temporary) (class TU) Student (subclass 500) visa. The applicant has confirmed to the Tribunal at the time, he was not in the migration zone.

5. On 19 July 2018 the delegate refused the visa application on the basis that the delegate was not satisfied the applicant intended genuinely to stay temporarily in Australia.

6. On 6 August 2018 the review applicant applied for a review of the delegate’s decision.

7. On 7 August 2018 the Tribunal wrote to the review applicant advising him that in order to have made a valid application for a review, he must have been in Australia at the time of the visa application; that it appeared that he was not in Australia at the time he applied for the visa; and that the Tribunal was of the view that the decision was not a decision which could be reviewed by the Tribunal. The review applicant was invited to comment in writing by 21 August 2018 on the validity of his application for review.

8. On 21 August 2018 the review applicant provided a letter to the Tribunal from his migration agent, Condor Migration, in which he acknowledged that he was outside Australia when the visa application was lodged. The applicant claimed, however, that whilst he was outside of Australia at that time, his application had been “legally deemed” to have been made in Australia; that he had been subsequently granted a bridging visa A to remain onshore and await the decision of the now refused application. Further, he claimed that it could be argued that by virtue of the application having been “made in Australia”, the application was made in the migration zone.

9. The Tribunal has carefully considered the applicant’s response, including his confirmation that he was outside the migration zone at the time the visa application was lodged, and his claim that the application had been “legally deemed to be made in Australia” and therefore could be considered to have been made in the migration zone.

10. The Tribunal notes that no particulars have been provided by the applicant to explain the claim that the visa application had been “legally deemed to be made in Australia”.

11. After careful consideration, the Tribunal does not accept the applicant’s argument that the application could be considered to have been made in the migration zone and the Tribunal has no other evidence before it that the applicant was in the migration zone at the time of the visa application.

12. Therefore the Tribunal finds that there is no reviewable decision, as the application for review was not properly made.

13. As the delegate’s decision is not reviewable in these circumstances it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

    DECISION

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

    Meredith Jackson
    Member