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CHUNG (Migration) [2017] AATA  1783  (22 August 2017)

Last Updated: 23 October 2017

CHUNG (Migration)  [2017] AATA 1783  (22 August 2017)

DECISION RECORD

DIVISION: Migration & Refugee Division

REVIEW APPLICANT: Mr Desmond Chung

VISA APPLICANT: Ms Wai Wai Lui

CASE NUMBER: 1716964

DIBP REFERENCE(S): CLF2013/194083

MEMBER: Helena Claringbold

DATE: 22 August 2017

PLACE OF DECISION: Sydney

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

Statement made on 22 August 2017 at 4:02pm

CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Applicant not in migration zone

LEGISLATION
Migration Act 1958, ss 5, 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 4 July 2017, to refuse to grant a Partner (Residence) (Class BS) 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 3 August 2017. 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. On 3 August 2017, Mr Chung applied to the Tribunal for review of a decision to refuse to grant a Partner (Residence) (Class BS) visa. On 11 August 2017, the Tribunal wrote to Mr Chung and informed him that the person entitled to apply for review in this matter is Ms Wai Wai Lui, the visa applicant, who is an eligible person and whose particulars were included in the visa application. In addition, Mr Chung was advised that in order to have made a valid application for review Ms Lui, must have been in Australia at the time the application was lodged.
5. On 12 August 2017, Mr Chung stated that from the information provided by the Department he understood that the applicant must be an Australian citizen. He claimed that this is why the parties decided to change the original applicant from Ms Lui, to Mr Chung, who is an Australian citizen. Mr Chung also stated that he was unaware and it was not mentioned that Ms Lui needed to be in Australia at the time the review application was made.
6. The application for review was lodged with the Tribunal on 3 August 2017. In the present case, the review application was made by the sponsor of the visa applicant. Even if the Tribunal accepted that it was the intent that Ms Lui was the applicant for review, the Department’s movement records show that Ms Lui departed Australia on 1 January 2017 and that she has not returned to Australia since that date. The Tribunal finds that Ms Lui 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

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

Helena Claringbold
Member