NGUYEN (Migration)

[2018] AATA 2220

NGUYEN (Migration) [2018] AATA 2220 (24 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms THI THU NGUYEN

CASE NUMBER:  1809711

DIBP REFERENCE(S):  BCC2016/2264076

MEMBER:Meena Sripathy

DATE:24 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 24 May 2018 at 11:19am

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Applicant not in the migration zone at review application date

LEGISLATION

Migration Act 1958, ss 5(1), 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 Immigration, dated 27 March 2018, to refuse to grant a Partner (Temporary) (Class UK) 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 8 April 2018. 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. On 18 April 2018 the Tribunal wrote to the applicant to invite her to comment on the validity of the application for review as she appears to be outside Australia at the time the review application was made on 8 April 2018. 

5. The applicant’s representative contacted the Tribunal on that date to advise that the applicant was still in Vietnam and seeking an extension of time to respond to the invitation to comment.  On 11 May 2018 the Tribunal received a submission from the applicant’s representative explaining that the applicant was granted a Bridging visa B on 22 March 2018 to enable her to travel to Vietnam to apply for a criminal record certificate.  When the representative received the refusal letter from the Department on 29 March 2018 he informed the applicant and she informed him that she had booked the flights to Vietnam for her and her husband and that she would transfer the money for the review application to his office on 8 April 2018.  After he received the money he lodged the application for review on 8 April 2018.  The representative discussed the issue raised by the Tribunal’s letter with the applicant and she wishes for the Tribunal to consider her situation.

6. The Tribunal has considered the reponse provided by the applicant’s through her representative. However, as indicated above, s 347(2)(a) of the Act specifies that for 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 that person must be physically present in the migration zone when the application for review is made: s.347(2)(a) and (3).

7. The Department’s movement records show the applicant departed Australia on 4 April 2018. The representative informed the Tribunal on 1 May 2018 that the applicant was still overseas and would return to Australia on 4 May 2018. The last date for lodgement of the application for review was 19 April 2018. Therefore 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.

8. The Tribunal notes that it is unfortunate that the applicant was not informed of this requirement by her representative given that she did not depart Australia until 4 April 2018 and there was an opportunity to lodge the application for review prior to that time. Unfortunately the Tribunal has no power or discretion to not apply the legislation in this matter. 

   DECISION

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

   Meena Sripathy
   Member