Weng (Migration)

[2017] AATA 1703

Weng (Migration) [2017] AATA 1703 (2 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Liangdong Weng

CASE NUMBER:  1712833

DIBP REFERENCE(S):  BCC2015/1723930

MEMBER:Katie Malyon

DATE:2 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 02 August 2017 at 12:18 pm

CATCHWORDS

Migration – Business Skills (Provisional) visa – Subclass 188 Business Innovation and Investment (Provisional) – Applicant not in migration zone

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 by a delegate of the Minister for Immigration, dated 25 May 2017, to refuse to grant Mr Liangdong Weng a Business Skills (Provisional) 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 16 June 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) of the Act, 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 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 Mr Weng was not in Australia on 16 June 2017 when his application for review to the Tribunal was made.  The Tribunal formed a preliminary view that the application for review was not a valid application as Mr Weng was not in Australia when his review application was lodged.  On 3 July 2017, the Tribunal wrote to Mr Weng inviting comments on the validity of his application for review.  He replied on 4 July 2017 acknowledging that he was in Shanghai at the time of lodging his review application owing to the fact that he had applied for leave of absence from La Trobe University due to a health condition for which he has returned to China to receive medical treatment.

5. The Department’s movement records show Mr Weng left Australia on 30 July 2016 and he has not returned.  In the circumstances, it is evident that he was not in Australia on 16 June 2017 when his representative lodged his application for review with the Tribunal. 

6. The Tribunal finds that Mr Weng 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.

   DECISION

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

   Katie Malyon

   
   Member