Zhang (Migration)

[2018] AATA 4738

Zhang (Migration) [2018] AATA 4738 (29 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yi Zhang

CASE NUMBER:  1832604

DIBP REFERENCE(S):  BCC2017/699630

MEMBER:Russell Matheson

DATE:29 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 29 November 2018 at 12:48pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – applicant not in the migration zone at time of review application – no jurisdiction

LEGISLATION

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 25 October 2018, to refuse to grant a Partner (Temporary) (Class UK) 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 6 November 2018. 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), 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 (3). ‘Migration zone’ is defined in s.5(1) of the Act and generally speaking means the Australian States and Territories.

4. The review applicant was sent a natural justice letter via his migration agent on 13 November 2018 and was invited to make any comments on whether a valid application for review had been made and was requested to respond to the natural justice letter by 27 November 2018. The review applicant was informed that he had to be in Australia at the time the review application was lodged with the Administration Appeals Tribunal on 6 November 2018. The Tribunal received a response from the review applicant on 23 November 2018 indicating that he was not in Australia at the time he lodged his application for review of a decision of a delegate of the Minister for Immigration, dated 25 October 2018, to refuse to grant his Partner (Temporary) (Class UK) visa because he had work commitments in China.

5. The Department’s movement records show the visa applicant departed Australia on 28 February 2017 and has not returned since that date. The visa applicant was absent from Australia at the time of the decision to refuse his visa on 25 October 2018. The visa applicant was absent and not physically present in the migration zone when the application for review was made on 6 November 2018. The Tribunal finds that the visa applicant 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 and it follows that the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Russell Matheson
   Member