Amritpal Singh (Migration)

[2020] AATA 4618

Amritpal Singh (Migration) [2020] AATA 4618 (6 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Amritpal Singh
Mrs Sharanjit Kaur

CASE NUMBER:  2013246

DIBP REFERENCE(S):  BCC2020452170

MEMBER:Alan McMurran

DATE:6 October 2020

PLACE OF DECISION:  Sydney

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

Statement made on 06 October 2020 at 4:24pm

CATCHWORDS

MIGRATION – Skilled Work Regional (Provisional) (Class PS) visa – invalid application – application not made in accordance with relevant legislation – only sponsor can apply for review – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 338, 347

Migration Regulations 1994, r 4.02

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 17 August 2020, to refuse to grant Skilled Work Regional (Provisional) (Class PS) visas under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(9) of the Act.

2. The review application was lodged with the Tribunal on 26 August 2020. 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) and r.4.02(5) of the Migration Regulations 1994 specify 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(9) and r.4.02(4)(la)(ii), an application for review may only be made by the permitted review applicant, in this instance, Didar Cleaning Pty Ltd ABN 86 135 399 816 (also using the trading name Didar Logistics) : r.4.02(5)(ka), being the sponsor or nominator.

4. On 9 September 2020, the Tribunal sent a natural justice letter to the applicant’s representative stating in part:

   “The persons who are entitled to apply to us in relation to these decisions are the
   sponsor or nominator. You are not such persons, and I am therefore of the view that
   your applications are not valid applications.”

5. The applicant was asked to respond by 23 September 2020.

6. On 23 September 2020, the applicant’s representative responded with a detailed reply but without addressing the issue of standing. The reply says in part:

   “We rely on the decision record of the Department of Home Affairs to make an application of
   Review of Amritpal Singh and Sharnjit Kaur. Moreover, we made the application within the time period of
   21 days provided by the decision maker to seek the review. Accordingly, the review application made is valid and shall be considered further for jurisdictional error by the Tribunal.”

7. The Tribunal rejects the submission that the applicants have validly brought an application for review as the applicants are not the permitted review applicant. On the available information, no application for review has been made to the Tribunal by the nominator or sponsor.

8. As the decision that is the subject of the review application is a decision covered by s.338(9) and r.4.02(4) (la)(ii), the application for review could only be made by the sponsor or nominator. In the present case, the review application was made by the visa applicant himself as employee of the nominator, and as secondary applicant, the visa applicant’s spouse. 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

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

   Alan McMurran
   Member