McCrossan (Migration)

[2024] AATA 856

McCrossan (Migration) [2024] AATA 856 (9 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kevin James McCrossan

CASE NUMBER:  2403443

HOME AFFAIRS REFERENCE(S):          BCC20237163271

MEMBER:Tania Flood

DATE:9 April 2024

PLACE OF DECISION:  Sydney

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

Statement made on 09 April 2024 at 2:16pm

CATCHWORDS

MIGRATION – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – 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 27 February 2024 for review of a decision made on 31 January 2024 to refuse to grant a BB – Return (Residence) (Class BB) (155) (Five Year Resident Return) 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 (Cth) (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 (Cth). Sections 338 and 411 of the Act and reg 4.02(4) of the Migration Regulations 1994 (Cth) set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. Relevant to this case, s.338(7A) provides that a decision to refuse to grant a non-citizen a permanent visa is a Part 5 – reviewable decision if the non-citizen made the application for the visa at a time when the non-citizen was outside the migration zone and the visa is a visa that could be granted while the non-citizen is either in or outside the migration zone. Section 347(3A) of the Act states that if the Part 5 – reviewable decision was covered by s.338(7A), an application for review may only be made by a non-citizen who was physically present in the migration zone at the time when the decision was made; and is physically present in the migration zone when the application for review is made.

3. On 28 February 2024 the Tribunal wrote to the applicant advising him that in order for him to have made a valid application he must have been in Australia at the time the delegate refused the visa application on 31 January 2024 and at the time when the application for review was lodged on 27 February 2024.  The Tribunal noted that he appears not to have been in Australia on those dates and therefore it appears that his application for review is not a valid application.  The applicant was invited to make any comments on whether a valid application has been made in writing by 13 March 2024.  The applicant did not respond to the Tribunal’s letter.

4. Based on the available evidence the application for the visa was lodged offshore on 9 December 2023.  However, the decision to refuse the visa was made on 31 January 2024 while the applicant was offshore.  The application for review was made on 27 February 2024 while the applicant was offshore. 

5. As the applicant was not in the migration zone at the time of the primary decision, the decision is not a reviewable decision. It follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Tania Flood
   Member