Yat Chi (Migration)

[2018] AATA 821

Yat Chi (Migration) [2018] AATA 821 (7 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yat Chi

CASE NUMBER:  1803944

DIBP REFERENCE(S):  BCC2018/324252

MEMBER:Linda Symons

DATE:7 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 07 March 2018 at 5:59pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Requirement for applicant to be in migration zone at time of application – Applicant not in migration zone

LEGISLATION

Migration Act 1958, ss 338, 347, 411, 412

Migration Regulations 1994, 4.02(4)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 14 February 2018 for review of a decision by the Department of Home Affairs to refuse to grant the applicant a Visitor visa. 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 or cancel visas and a range of sponsorship and nomination decisions but not a decision to refuse to grant a Visitor visa where the applicant was outside the migration zone at the time of application, applied under the Tourist stream or the Sponsored Family stream and was not sponsored in accordance with s.338(5)(b) of the Act.

3. On 19 February 2018, the Tribunal wrote to the applicant, indicated why his application for review may not be valid and invited him to make comments on the validity of his application for review, in writing, by 5 March 2018. This letter was sent to him by email on 19 February 2018. On 22 February 2018, the Tribunal received an email letter from him acknowledging receipt of the Tribunal’s letter and inquiring as to what he should do to get a Member to review his application.

4. On 22 February 2018, the Tribunal again wrote to the applicant and explained to him that he had an opportunity to make written comments by 5 March 2018 in relation to whether a valid application for review has been made before his application is referred to a Member to determine. This letter was sent to him by email on 22 February 2018.

5. On 28 February 2018, the Tribunal received another email letter from the applicant indicating that he did not understand, he had received a document that stated that he needed to contact a Member by 5 May and inquiring about what steps he needed to take to get his application reviewed by a Member.

6. On 1 March 2018, the Tribunal again wrote to the applicant inviting him to make comments on the validity of his application for review and explaining to him that he had until 5 March 2018 and not 5 May to do so. The Tribunal did not receive any written comments from the applicant in relation to the validity of his application for review.      

7. As the delegate’s decision is not reviewable under Parts 5 or 7 of the Act, 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.

   Linda Symons
   Member