Shen (Migration)

[2017] AATA 2688

Shen (Migration) [2017] AATA 2688 (16 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Feicen Shen
Mrs Jingjie Feng
Master Yuxuan Shen
Master Yuhan Shen

CASE NUMBER:  1724758

DIBP REFERENCE(S):  BCC2015/1760670 BCC2017/3957228 BCC2017/3957230

MEMBER:Hugh Sanderson

DATE:16 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 16 November 2017 at 2:25pm

CATCHWORDS
Migration – Business Skills (Provisional) visas – Applicants not in Australia at time of review application – Application was not made in accordance with the relevant legislation

LEGISLATION
Migration Act 1958 ss 5(1), 65, 338(2), 347, 347(2), 347(2)(a) , 347(3)

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 20 September 2017, to refuse to grant Business Skills (Provisional) visas 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 11 October 2017. 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. The Tribunal wrote to the applicant on 31 October 2017 noting that all the applicants were not in Australia on the date the review application was filed and therefore the application was not valid. The applicant was invited to comment on this information by 14 November 2017. No response has been received by the Tribunal at the time of this decision.

5. The Department’s movement records show at the time the review application was filed none of the applicants were present in Australia. 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

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

   Hugh Sanderson
   Member