1512712 (Migration)

[2016] AATA 3634

1512712 (Migration) [2016] AATA 3634 (31 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Leo Vengky Tjia

CASE NUMBER:  1512712

DIBP REFERENCE(S):  BCC2014/1818174

MEMBER:Michael Cooke

DATE:31 March 2016

PLACE OF DECISION:  Sydney

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

Statement made on 31 March 2016 at 5:00pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 16 September 2015 for review of a refusal of a Subclass 402 visa. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

2. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal and the circumstances in which they are reviewable.

3. A decision to refuse a Subclass 402 visa is reviewable if the applicant made the visa application while in the migration zone. At the time the review application was lodged the applicant was not identified in a nomination under s.140GB of the Migration Act 1958 that was approved or pending. Subsequently a letter of nomination of the applicant appeared on the Department file (at folio 57). However, he Tribunal can find no evidence of an approved nomination. The delegate’s decision on the Tribunal file indicates that the sponsorship application for the applicant was refused on 3 September 2015. There is no pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E or a decision not to approve the nomination under s.140GB of the Act.

4. The applicant was sent an Invitation to Comment on Validity of Application for Review letter on 12 February 2016 but did not reply to the Invitation.

5. As the delegate’s decision is not reviewable in these circumstances it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Michael Cooke
   Member