Shen (Migration)

[2017] AATA 2335

Shen (Migration) [2017] AATA 2335 (9 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zhongbin Shen
Mrs Hui Zhang

CASE NUMBER:  1724743

DIBP REFERENCE(S):  BCC2015/1759445

MEMBER:Alison Mercer

DATE:9 November 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 09 November 2017 at 4:53pm

CATCHWORDS

Migration – Business Skills (Provisional) visas – Visa applicant outside of the Migration Zone

LEGISLATION

Migration Act 1958, ss 5(1), 65, 338(2), 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. On 20 October 2017, the Tribunal wrote to the applicants via their registered migration agent to invite them to comment on whether their review application had been validly made. Specifically, the Tribunal noted that in order to have made a valid application for review, the applicants had to have been in the migration zone (Australia) at the time that the review application was lodged. However, it appeared from the Department’s movement records that the applicants were offshore (outside Australia) on 11 October 2017, when the review application was lodged, and thus it appeared that the review application had not been validly lodged.  The applicants were invited to comment on this issue by 3 November 2017, and advised that any comments received would be referred to a Tribunal Member for consideration, and that Member would ultimately determine whether the review application had been validly made.

5. The Tribunal did not receive any comments from the applicants or their agent by 3 November 2017, and has not received any further communication from any of them as at the date of this decision on 9 November 2017.

6. The Department’s movement records show that as at 11 October 2017, the applicants were outside Australia.  Accordingly, 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

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

   Alison Mercer
   Member