Pun (Migration)

[2023] AATA 1752

Pun (Migration) [2023] AATA 1752 (10 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Uttam Pun

REPRESENTATIVE:  Mr Suraj Shrestha (MARN: 0962152)

CASE NUMBER:  2303265

HOME AFFAIRS REFERENCE(S):          BCC2023506728

MEMBER:Peter Katsambanis

DATE:10 May 2023

PLACE OF DECISION:  Perth

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

Statement made on 10 May 2023 at 12:13pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – outside the migration zone at time of visa application – non-reviewable decision – No jurisdiction

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 8 March 2023 for review of a decision of a delegate of the Minister for Home Affairs, dated 27 February 2023, to refuse to grant the applicant a Student (Temporary) (class TU) Student (subclass 500) visa.  

2. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

3. 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. Pursuant to s 338(2) of the Act, a decision to refuse to grant a subclass 500 visa is reviewable if the visa could be granted while the non-citizen is in the migration zone (s 338(2)(a)) and the non-citizen made the application for the visa while in the migration zone (s 338(2)(b)) and if certain other criteria that are not directly relevant to this case are met (s 338(2)(c) – (d)).

4. In this matter, according to Department records, the applicant departed Australia on 27 January 2023, lodged his visa application that is the subject of the delegate’s decision on 30 January 2023 and returned to Australia on 6 February 2023. Therefore, the applicant was not in the migration zone when he lodged the relevant visa application.

5. It is accepted that a subclass 500 visa is a type of visa that could be granted while the non-citizen is in the migration zone. However, the decision of the delegate made on 27 February 2023 is not reviewable in the circumstances of this case because the applicant made the visa application that was the subject of the delegate’s decision while outside the migration zone.

6. On 14 March 2023, the Tribunal wrote to the applicant inviting him to comment on the Tribunal’s view that the review application was not a valid application because his visa application that is the subject of the delegate’s decision had been lodged whilst the visa applicant was offshore.

7. In a response on 16 March 2023, the applicant’s representative highlighted that the Department’s notification letter sent to the applicant together with the delegate’s decision stated that the applicant did have review rights in relation to the refusal decision. The representative acknowledged that the applicant was offshore when he lodged his subclass 500 visa application. However, the representative noted that the applicant held an Australian bridging visa, and that the applicant was onshore in Australia when he lodged his review application with the Tribunal. On this basis, the representative submitted that the application should be considered to be valid ‘when assessed in light to the refusal letter and the reasonable protocol’.

8. The Tribunal has read and considered the representative’s submission prior to making a decision in this matter. It is acknowledged that the Department’s notification letter sent to the applicant on 27 February 2023 did suggest that the applicant may have review rights in relation to the delegate’s decision. However, despite the contents of this letter, the operation of s 338(2)(b) does not allow for review rights in circumstances where the applicant is not in the migration zone when the visa application is lodged. The location of the applicant at the time of lodging his review application is not relevant in these circumstances as the provisions of s 338(2)(b) relate to an applicant’s location within the migration zone when the relevant visa application is lodged. As the applicant was not in the migration zone when he lodged the relevant visa application, the Tribunal therefore does not have any discretion to waive the criteria in s 338(2)(b) and, despite the representative’s assertions, there is no ‘reasonable protocol’ applicable in these circumstances,

9. 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

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

    Peter Katsambanis
    Member