Zhang (Migration)

[2023] AATA 939

Zhang (Migration) [2023] AATA 939 (30 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yanna Zhang

REPRESENTATIVE:  Ms Amy Lee (MARN 0215803)

CASE NUMBER:  2300009

HOME AFFAIRS REFERENCE(S):          BCC20201444565

MEMBER:Member Nathan Goetz

DATE:30 March 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 30 March 2023 at 10:27am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – physical presence in migration zone at time of review – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 347

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the applicant a Partner (Temporary) (Class UK) visa.

2. The applicant was represented in the review by registered migration agent 0215803.

   BACKGROUND

3. The applicant identifies as a female citizen of China. She last arrived in Australia on 30 January 2020 holding a visitor visa. On 27 April 2020 the applicant applied for the partner visa. On 10 May 2020 she departed Australia and has not returned. On 12 December 2022 the delegate refused to grant the visa.

4. On 1 January 2023 the applicant applied to the Tribunal for review of the decision. This decision is reviewable under s 338(2) of the Act.

   CONSIDERATION OF EVIDENCE

5. In the letter notifying the applicant that the visa had been refused, she was advised that:

   ·     The Department could not consider the visa application further, but the applicant was entitled to apply to the Tribunal for merits review of the decision.

   ·     The application for merits review must be given to the Tribunal within 21 calendar days after the day she was taken to have received the letter

   ·     As the letter was sent to her by email, the applicant was taken to have received it at the end of the day it was transmitted.

   ·     The time in which the applicant may apply to the Tribunal for merits review of the decision is prescribed by law and cannot be extended

   ·     The applicant can only seek merits review with the Tribunal if she is physically present in Australia at the time the application for review is made.

6. On 19 January 2023 the Tribunal wrote to the applicant and invited her to comment on the validity of the review application.

7. The letter detailed to the applicant that in order to have a valid review application, the applicant needed to be in Australia when she lodged the review application. As the applicant was not in Australia at that time, it appeared that the applicant had not made a valid application for review, meaning that the Tribunal did not have jurisdiction to review the decision.

8. On 31 January 2023 the applicant provided the Tribunal with a completed form appointing the current migration agent, as well as a submission about the validity of the review. In the submission, the applicant contended that:

   ·     There were reasons why she was presently outside Australia, and she detailed those reasons, and the reasons he was outside Australia were due to circumstances beyond her control

   ·     The applicant would satisfy the criteria for the grant of the visa

   ·     There was an ‘acknowledgement by the Department that there are exceptional circumstances in this case that allows for the Tribunal to accept the review application despite the fact that the applicant was offshore at the time the review application was lodged

   ·     But for the fact that the applicant was not physically present in Australia on the day she applied for review of the decision, the Tribunal would have jurisdiction to review the decision.

   FINDINGS AND REASONS

9. For the following reason, the Tribunal has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

10. 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.

11. The evidence is that the applicant was outside Australia at the time she applied for review of the decision. She did not contend otherwise.

12. The applicant’s comment on the validity of the review application was misdirected. It is immaterial to the question about the validity of the review application about why the applicant is outside of Australia. Similarly, the suggestion that the applicant would satisfy the requirements for the grant of the visa is immaterial to the question about the validity of the review application.

13. Further, the suggestion that there was an ‘acknowledgement by the Department that there are exceptional circumstances that allows the Tribunal to accept the review application as valid’ was without merit. There is no evidence of this. The only acknowledgement of the Department about the applicant’s right to merits review was contained in the notification letter, which clearly identified that the applicant needed to physically be in Australia at the time she applied for merits review of the decision.

14. However, the applicant’s submission was correct about one thing, namely that but for the fact that the applicant was not physically present in Australia at the time she applied to the Tribunal for review of the decision (and all other requirements about timing and fees etc were met), the Tribunal would have jurisdiction to review the decision. That was, after all, the issue at the heart of the jurisdiction question.

    CONCLUSION

15. The Tribunal finds that the 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. The Tribunal has no discretion to waive the requirement that the applicant be in Australia at the time she lodged the review application.

    DECISION

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

    Nathan Goetz
    Member