Sharma (Migration)

[2019] AATA 255

Sharma (Migration) [2019] AATA 255 (6 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bhavya Nikunj Sharma

CASE NUMBER:  1838079

MEMBER:Nicole Burns

DATE:6 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 06 February 2019 at 3:38pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Student) – no Tribunal-reviewable decision – applicant was refused immigration clearance – approved nomination of an occupation – no jurisdiction           

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 116, 338, 347, 411, 412
Migration Regulations 1994, r 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 28 December 2018 for review of a decision to cancel his Subclass 572 (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 (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. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 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. A decision to cancel a visa held by a non-citizen is reviewable by the Tribunal where the non-citizen is in the migration zone at the time of the cancellation, unless (among other things) it is made a time when the non-citizen was in immigration clearance: s.338(3)(b).

3. In this case, as set out in the decision record to cancel the applicant’s Subclass 572 (student) visa, the applicant’s visa was cancelled on arrival at Perth airport on 28 December 2018 under s.116(1)(b) of the Act, on the basis that he had not complied with a condition of his visa.  The applicant was also refused immigration clearance.

4. On 7 January 2019 the Tribunal wrote to the applicant inviting his comments on the validity of the review application given that he was in immigration clearance at the time of the cancellation decision. On 8 January 2019 the Tribunal received a telephone call from the applicant’s migration agent who agreed there was no jurisdiction. 

5. The Tribunal finds that the applicant was in immigration clearance at the time the cancellation decision was made, and thus the decision is not a Part 5 – reviewable decision pursuant to 338(3)(b).

6. 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

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

   Nicole Burns
   Member