AAQIB (Migration)

[2018] AATA 822

AAQIB (Migration) [2018] AATA 822 (2 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Aaqib

CASE NUMBER:  1803984

DIBP REFERENCE(S):  BCC2016/3935956

MEMBER:Katie Malyon

DATE:2 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 02 March 2018 at 5:42 pm

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Requirement for applicant to be in migration zone at time of application – Applicant not in migration zone as required

LEGISLATION

Migration Act 1958, ss 65, 338(2), 347(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision made by a delegate of the Minister for Immigration, dated 14 February 2018, to refuse to grant Mr Muhammad Aaqib a Regional Employer Nomination (Class RN) Subclass 187 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 February 2018, the day after the delegate refused the visa application.  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) of the Act, an application for review may only be made by the non-citizen who is the subject of the decision and who is physically present in the migration zone when the application for review is made: s.347(2)(a) and (3) of the Act (emphasis added). The term ‘migration zone’ is defined in s.5(1) of the Act and, generally speaking, means the Australian States and Territories.

4. Departmental records indicate that Mr Aaqib was not in Australia on 15 February 2017 when his application for review to the Tribunal was made.  The Tribunal formed a preliminary view that the application for review was not a valid application as Ms Aaqib was not in Australia when the application was lodged with the Tribunal.  On 19 February 2017, the Tribunal wrote to Mr Aaqib inviting comments on the validity of his application for review. 

5. Mr Aaqib’s representative replied on 26 February 2018 acknowledging that Mr Aaqib was offshore when the review application was lodged with the Tribunal.  Initially, he withdrew the review application and requested a refund of the application fee.  However, when advised by the Tribunal that, if the withdrawal proceeds then no refund is payable, Mr Aaqib’s representative requested the Tribunal make a decision on the application. 

6. The Department’s movement records confirm that Mr Aaqib was not in Australia on 15 February 2018 when his representative lodged the application for review with the Tribunal. 

7. The Tribunal finds that Mr Aaqib 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 of the Act and it follows that the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Katie Malyon

   
   Member