Phan (Migration)

[2020] AATA 1175

Phan (Migration) [2020] AATA 1175 (24 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lu Phan

CASE NUMBER:  1936454

DIBP REFERENCE(S):  PNJ

MEMBER:Gabrielle Cullen

DATE:24 February 2020

PLACE OF DECISION:  Sydney

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

Statement made on 24 February 2020 at 3:39pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 590 (Guardian) – outside migration zone at time of lodgement – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 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 9 December 2019, to refuse to grant a Student (Temporary) (Class TU) 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 27 December 2019. 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 30 January 2020 the Tribunal wrote to the applicant and advised that it appeared the application for review is not valid as it was lodged on 27 December 2019 when the applicant was not in Australia and the migration zone. The applicant was given until 14 February 2020 to comment or respond.

5. The applicant responded on 17 February 2020 and advised that he understood that the Tribunal was referring to the application being made when he was not in the migration zone. However, the applicant noted that the decision by the Department to refuse the original application based on PIC 4020 was incorrect and by the Tribunal failing to consider the application it is assisting the Department in their negligent and arbitrary decision against hm. The applicant urged the Tribunal to request the Department reconsider the original decision.

6. The Tribunal has considered the applicant’s response; however the Department’s movement records show the applicant was not present in the migration zone when the review application was made. 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.

   DECISION

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

   Gabrielle Cullen
   Member