Sharma (Migration)

[2023] AATA 1950

Sharma (Migration) [2023] AATA 1950 (9 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rahul Sharma

CASE NUMBER:  2303008

HOME AFFAIRS REFERENCE(S):          BCC2023/536346

MEMBER:Mary Sheargold

DATE:9 May 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 09 May 2023 at 10:30am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – applicant was not in the migration zone at the relevant time – applicant was not in Australia on the date of the visa refusal nor the date the application for review was lodged ––no jurisdiction

LEGISLATION

Migration Act 1958, ss 5, 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 Home Affairs, dated 27 February 2023, to refuse to grant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act). This decision is reviewable under s 338(2) of the Act.

2. The review application was lodged with the Tribunal on 3 March 2023. 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 14 March 2023, the Tribunal wrote to the applicant inviting him to comment on the validity of his application for review, noting that he was not in Australia on the date of the visa refusal nor the date the application for review was lodged.  He was invited to provide written comments in response to this by 28 March 2023.

5. On 28 March 2023, the applicant wrote an email to the Tribunal titled “Urgent hearing or decision request case number 2303008” with the contents of the email reading, verbatim:

   I have already told you through an e-mail on 13 March 2023 that my future depends on the decision taken by you. I have already sent all the documents.  I would like to request you again to take a decision as soon as possible keeping in mind my future so that I can start my studies soon. 

   Thank you very much.

   Rahul Sharma

6. The applicant forwarded a second copy of this email to the Tribunal on 12 April 2023.  The Tribunal has identified an email sent by the applicant on 13 March 2023 that states:

   Good day Sir,

   I would like to inform you that I have filed a case with you against the study visa refusal which is case number 2303008.  I kindly request you to consider my future as soon as possible please hear it and whatever decision should be given so that my future can be saved and I can start my studies in your country soon.

   I sincerely hope that you will investigate the case and give a positive decision for me.

   Thank you very much.

   Rahul Sharma

7. The applicant provided a number of documents, including a personal statement, financial records, a police check, an English language test result, an extract from a speech by the Minister for Home Affairs, The Hon Clare O’Neil MP, and a copy of his passport.  No evidence has been provided to the Tribunal to suggest that the applicant was in Australia at the time of the delegate’s decision or the time the application was made to the Tribunal.

8. There is no evidence to suggest that the applicant has travelled to Australia before.  His address, provided to the Department, is a street address in India.  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

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

   Mary Sheargold
   Member