Yuliani (Migration)

[2023] AATA 3176

Yuliani (Migration) [2023] AATA 3176 (30 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ratna YULIANI

CASE NUMBER:  2310604

HOME AFFAIRS REFERENCE(S):          BCC2023/3151021

MEMBER:Mireya Hyland

DATE:30 August 2023

PLACE OF DECISION:  Sydney

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

Statement made on 30 August 2023 at 1:04pm

CATCHWORDS
MIGRATION – cancellation – Visitor (Class FA) visa – Subclass 600 (Visitor) – outside migration zone at time of cancellation – not Part 5-reviewable decision – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 128, 338, 347
Migration Regulations 1994 (Cth), r 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 18 July 2023 for review of a decision of a delegate of the Minister for Home Affairs, dated 2 June 2023, to cancel a Visitor (Class FA) Subclass 600 visa held by the applicant, Ratna Yuliani, under s.128 of the Migration Act 1958 (the Act). For the following reasons, the Tribunal finds that it has no jurisdiction in respect of this application.

2. The Tribunal has jurisdiction to review a decision if an application is properly made under s.347 (Part 5) or s.412 (Part 7) of the Act or, in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975 (Cth). Section 338 (Part 5-reviewable decisions) and s.411 (Part 7-reviewable decisions) of the Act, and r.4.02(4) of the Migration Regulations 1994, set out the decisions that are reviewable in the Migration and Refugee Division of the Tribunal and the circumstances in which they are reviewable. A decision to cancel a Visitor visa is not a Part 7-reviewable decision: s.411(1) of the Act. A decision to cancel a Visitor visa is a Part 5-reviewable decision that the Tribunal can review under s.338(3) of the Act where the applicant is in the migration zone at the time of the cancellation. There is no other circumstance in which a cancellation can be reviewed under Part 5 of the Act. Ms Yuliani’s visa was cancelled under s.128 of the Act. It is a requirement that the non-citizen is outside Australia before a visa can be cancelled pursuant to s.128 of the Act. Therefore, a valid cancellation under s.128 is not reviewable by the Tribunal. The information before the Tribunal shows that Ms Yuliani was not in Australia on 2 June 2023 when her visa was cancelled and, therefore, does not fall within s.338(3) of the Act.

3. As the decision is not reviewable under Part 5 or Part 7 of the Act, it follows that the review application was not properly made and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Mireya Hyland
   Member