YAO (Migration)

[2019] AATA 139

YAO (Migration) [2019] AATA 139 (21 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rui YAO

CASE NUMBER:  1835247

DIBP REFERENCE(S):  BCC2018/5624361

MEMBER:Jennifer Cripps Watts

DATE:21 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 21 January 2019 at 8:56am

CATCHWORDS

MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – no Tribunal-reviewable decision – no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 338, 347, 411, 412
Migration Regulations 1994, r 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 30 November 2018 for review, indicating the decision the applicant wished to be reviewed was made on 30 November 2018 by a delegate for the Minister of Immigration (the delegate) to cancel the applicant’s Subclass 500 Student Visa under the Migration Act 1958 (the Act).  No copy of the delegate’s decision referred to was provided to the Tribunal.  For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

2. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to refuse and cancel visas of various kinds and a range of sponsorship and nomination decisions, but the evidence before the Tribunal indicates that at the time the review application was lodged, no relevant decision had been made.

3. On 14 December 2018, the Tribunal wrote to the applicant inviting comment regarding the validity of his application on the basis that there was no decision to be reviewed.  A response was received within the stated timeframe from the applicant’s appointed migration agent and authorised recipient, Mr Shuonan Zhao, Migration Agent Registration Number 1807316.  There appears to have been some confusion about when or whether a decision had been made to cancel the applicant’s visa at the time the review application was made.  Various facts and matters were set out in the response and they have been considered. 

4. Essentially, there seemed to have been some delay in the applicant’s migration agent receiving the Notice of Intention to Consideration Cancellation (NOICC).  They advise that they received the NOICC on 5 December 2018, but say that when they contacted the Tribunal they were told by a Tribunal officer that there was an earlier NOICC and that the applicant’s student visa had already been cancelled.  Because the applicant thought the visa had been cancelled, although no proper notification from the Department seems to have been received by the applicant, he applied for Tribunal review.  

5. The applicant informed the Tribunal, by email dated 14 December 2018, that he had responded to the NOICC and wished to withdraw his application for review until further action is taken by the Department of Home Affairs.  The Tribunal notes that the applicant has lodged a subsequent application for review on the basis of a decision to cancel his student visa made on 2 January 2019.

6. The Tribunal is satisfied, on the available information, that there was no reviewable decision in this matter made prior to lodgement of the review application.  It therefore follows that the application was not properly made and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Jennifer Cripps Watts
   Member