Phan (Migration)

[2024] AATA 3724

Phan (Migration) [2024] AATA 3724 (1 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Thi Thu Phan
Ms Nhu Ngoc Phan

CASE NUMBER:  2424310

HOME AFFAIRS REFERENCE(S):          BCC2020/2525772

MEMBER:Justine Clarke

DATE:1 October 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 01 October 2024 at 5:10pm

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – applicants not in migration zone when refusal decision and review application made – application for review not in accordance with relevant legislation – no response to invitation to comment – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 338(7A), 347(2), (3A)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 22 July 2024, an application was lodged with the Tribunal for the review of a decision of a delegate of the Minister for Home Affairs made on 10 June 2024 to refuse to grant Partner (Migrant) (Class BC) visas under s 65 of the Migration Act 1958 (Cth) (the Act). This decision is reviewable under s 338(7A) of the Act.

2. 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(7A), 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 both the primary decision and the application for review are made: s 347(2)(a) and (3A). ‘Migration zone’ is defined in s 5(1) of the Act and, generally speaking, means the Australian States and Territories.

4. On 13 August 2024, the Tribunal wrote to the applicants to invite them to comment on the validity of the review. The letter relevantly stated:

   In order to have made valid applications, Ms Thi Thu Phan and Ms Nhu Ngoc Phan must have been in Australia at the time the Department of Home Affairs refused the visa applications on 10 June 2024 and also at the time the applications for review were lodged with the Tribunal on 22 July 2024. It appears that Ms Thi Thu Phan and Ms Nhu Ngoc Phan were not in Australia on the dates 10 June 2024 and 22 July 2024, and I am therefore of the view that your applications are not valid applications. However, this is a matter which must be determined by a Member.

5. The letter requested any comments to be made in writing by 27 August 2024.

6. To date, the Tribunal has not received a response.

7. The Department’s movement records show that:

   ·on 16 February 2024, Ms Thi Thu Phan departed Australia and, as at 13 August 2024 (being the date the movement records were prepared), she had not re-entered Australia; and

   ·on 27 April 2022, Ms Nhu Ngoc Phan departed Australia and, as at 13 August 2024 (being the date the movement records were prepared), she had not re-entered Australia.

8. The Tribunal finds that the applicants were 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.

   DECISION

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

   Justine Clarke
   Member