Tie (Migration)

[2019] AATA 1815

Tie (Migration) [2019] AATA 1815 (22 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nathaniel Xin Zhe Tie

CASE NUMBER:  1901995

DIBP REFERENCE(S):  BCC2018/4607696

MEMBER:M. Edgoose

DATE:22 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 22 March 2019 at 10:12am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – applicant was not in the migration zone at time of the review application– no jurisdiction

LEGISLATION

Migration Act 1958, ss 5, 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 22 January 2019, to refuse to grant a Skilled (Provisional) (Class VC) 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 29 January 2019. 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 Department’s movement records show the applicant was not in the migration zone at time of the review application. 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

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

   M. Edgoose
   Member