Tabor (Migration)

[2019] AATA 3360

Tabor (Migration) [2019] AATA 3360 (11 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Peter Tabor

CASE NUMBER:  1837987

DIBP REFERENCE(S):  BCC2018/873193

MEMBER:Wendy Banfield

DATE:11 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 11 March 2019 at 11:26pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – applicant not in the migration zone at time of review application – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 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 Immigration, dated 21 December 2018, to refuse to grant a Temporary Business Entry (Class UC) visa 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 27 December 2018. 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 15 January 2019 the Tribunal wrote to the applicant inviting him to comment on the validity of the application for review. On 29 January 2019 the applicant’s representative responded to the invitation. In the response it was claimed the Department had acted in bad faith by refusing the application for a Subclass 457 Visa after the applicant had been granted a Bridging Visa B for the purposes of travel overseas and had left Australia. The response also stated the notification of an invalid application made to the Tribunal was sent to the applicant after the 21 day deadline to apply for review and that the application for review has merit.

5. The Department’s movement records show the applicant was not in Australia at the relevant time as he had departed on 20 December 2018. Therefore the applicant does not meet the requirements under s.347(3) of the Migration Act. The Tribunal is unable to consider the issues submitted by the applicant’s representative as there is no discretion in relation to this provision. 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

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

   Wendy Banfield
   Member