ZHANG (Migration)

[2018] AATA 3343

ZHANG (Migration) [2018] AATA 3343 (23 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr LINJIANG ZHANG

CASE NUMBER:  1817525

DIBP REFERENCE(S):  

MEMBER:Russell Matheson

DATE:23 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 23 July 2018 at 9:55am

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 29 May 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 15 June 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 Tribunal received a response to a natural justice letter sent to the visa applicant on 4 July 2018 from the visa applicant’s wife dated 16 July 2018. The visa applicant’s wife Hong Ye states that her husband has no visa and cannot return to Australia to be with his family. She further states that Australia is a humane country and requests the Tribunal to make a fair decision. The Tribunal acknowledges the response to the natural justice letter but has no jurisdiction in relation to this matter.

5. The Department’s movement records show the visa applicant departed Australia on 16 August 2016 and has not returned since that date. The visa applicant was absent from Australia at the time of the primary decision to refuse his visa on 29 May 2018. The applicant was absent and not physically present in the migration zone when the application for review was made on 15 June 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