Webber (Migration)

[2017] AATA 1781

Webber (Migration) [2017] AATA 1781 (17 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Susan Patricia Webber

CASE NUMBER:  1715549

DIBP REFERENCE(S):  BCC2016/2648626

MEMBER:Katie Malyon

DATE:17 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 17 August 2017 at 9:39 am

CATCHWORDS

Migration – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 – Not in migration zone at time of application

LEGISLATION

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

Migration Regulations 1994, Schedule 2

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 18 July 2017 for review of a decision by a delegate of the Minister for Immigration, dated 5 July 2017, to refuse to grant Susan Patricia Webber a Skilled Independent (Permanent) (Class SI) Subclass 189 visa under s.65 of the Migration Act 1958 (the Act). Such as decision is reviewable under s.338(2) of the Act.

2. The review application was lodged with the Tribunal on 18 July 2017.  For the following reasons, the Tribunal has found it 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) of the Act, an application for review may only be made by the non-citizen who is the subject of the decision and who is physically present in the migration zone when the application for review is made: s.347(2)(a) and s.347(3) of the Act (emphasis added). The term ‘migration zone’ is defined in s.5(1) of the Act and, generally speaking, means Australia’s States and Territories.

4. Departmental records indicate that Ms Webber was not in Australia on 18 July 2017 when her application for review to the Tribunal was made.  The Tribunal formed a preliminary view that Ms Webber’s application for review was not a valid application as she was not in Australia when her review application was lodged.  On 20 July 2017, the Tribunal wrote to Ms Webber inviting comments on the validity of her application for review.  Her representative contacted the Tribunal the same day and, during a telephone conversation with a Tribunal staff officer, acknowledged he had made a mistake.  He called the Tribunal again later that day and advised that Ms Webber would be returning to Australia shortly and that a fresh review application would be lodged with the Tribunal after she returns to Australia.

5. The Tribunal has confirmed that the Department’s movement records show Ms Webber left Australia on 13 July 2017 and had not returned on 18 July 2017 when her application for review was lodged with the Tribunal.

6. The Tribunal finds that Ms Webber 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 of the Act and it follows that the Tribunal does not have jurisdiction in this matter.

7. As the delegate’s decision is not reviewable in these circumstances it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Katie Malyon

   
   Member