Obarezi (Migration)

[2022] AATA 2094

Obarezi (Migration) [2022] AATA 2094 (7 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Chidinma Obarezi

CASE NUMBER:  2203647

HOME AFFAIRS REFERENCE(S):          BCC2022195391

MEMBER:Rachel Da Costa

DATE:7 June 2022

PLACE OF DECISION:  Sydney

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

Statement made on 07 June 2022 at 8:54am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – outside of migration zone when review application was lodged – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 338, 347, 411, 412
Migration Regulations 1994 (Cth), r 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 15 March 2022 for review of a decision of a delegate of the Minister for Home Affairs to refuse to grant the applicant a Student 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 and the circumstances in which they are reviewable.

3. A decision to refuse to grant a Student visa is reviewable if the visa applicant made the visa application while in the migration zone and the decision was not made while the visa applicant was in immigration clearance or had been refused immigration clearance and had not subsequently been immigration cleared. A decision to refuse to grant a Student visa is not reviewable in the circumstances of this case because the applicant was not in the migration zone at the time she made the visa application.

4. The applicant lodged her application for a Student visa on 8 February 2022.

5. On 16 February 2022, a delegate of the Minister wrote to the applicant informing her that her application for a Student visa had been refused. This letter also explained that there is no right of merits review to this decision.

6. On 15 March 2022, the applicant lodged an application for review of the decision with the Tribunal. On 26 April 2022, the Tribunal wrote to the applicant inviting her to comment on the validity of her application for review. The letter from the Tribunal noted that in order to have made a valid application, the applicant must have been in Australia at the time the delegate refused her visa application and at the time the review application was lodged with the Tribunal.

7. On 2 May 2022, the applicant responded in writing to the Tribunal’s letter. She stated that she was not aware that she had to be in Australia at the time she submitted her review application. She confirmed that she was not in Australia at this time.

8. Records of the Department of Home Affairs available to the Tribunal confirm that the applicant has never visited Australia. This means she was not in the migration zone at the time she made her application for a Student visa.

9. The Tribunal notes that the letter from the delegate explained to the applicant that she had no right to merits review of the decision to refuse her Student visa. The reason for this is that the applicant was not in the migration zone at the time she made her visa application. The letter from the Tribunal inviting the applicant to comment on the validity of her application for review states that in order to have made a valid application, the applicant must have been in Australia at the time the delegate refused her visa application and at the time her review application was lodged with the Tribunal. The relevant circumstance is, in fact, the applicant being outside the migration zone at the time she made her visa application. However, the Tribunal does not consider that anything turns on the fact that this information was not specifically included in the letter from the Tribunal to the applicant given the letter from the delegate explained that there was no right to merits review, and records show that the applicant has not been in the migration zone at any stage of the application process.

10. 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

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

    Rachel Da Costa
    Member