Tran (Migration)

[2020] AATA 5936

Tran (Migration) [2020] AATA 5936 (30 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Xuan Sang Tran
Mr Dang Tuan Khanh Le

CASE NUMBER:  2013911

DIBP REFERENCE(S):  BCC2019/3715772

MEMBER:Mr S Norman

DATE:30 October 2020

PLACE OF DECISION:  Sydney

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

Statement made on 30 October 2020 at 3:36pm

CATCHWORDS

MIGRATION – Skilled (Residence) (Class VB) 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 31 August 2020, to refuse to grant Skilled (Residence) (Class VB) 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 13 September 2020. 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. By letter dated 25 September 2020 (dispatched by email), the Tribunal advised the applicant that in order to have made valid applications, both applicants (Mrs Xuan Sang Tran & Mr Dang Tuan Khanh Le) must have been in Australia at the time the applications were lodged with the Tribunal on 13 September 2020. Further, that it appeared that both applicants were not in Australia on that date, and therefore the Tribunal was of the view that the merits review applications were not valid. However, this was a matter which must be determined by a Member. The applicants were requested to comment in writing by 9 October 2020.

5. By email of 9 October 2020, and after setting out reasons for the late lodgement, the applicant requested a ‘reconsideration’. 

6. However, the Department’s movement records show the applicants as being outside Australia from 13 August 2019 (Mrs Xuan Sang Tran ) and from 4 December 2019 (Mr Dang Tuan Khanh L); and they continued to be outside Australia at the time the applications were lodged with the Tribunal on 13 September 2020. 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.

   Mr S Norman
   Member