Athwal (Migration)

[2018] AATA 2936

Athwal (Migration) [2018] AATA 2936 (21 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Harpreet Kaur Athwal
Miss Mankirat Kaur Athwal
Master Sahibjeet Singh Athwal

CASE NUMBER:  1814259

DIBP REFERENCE(S):  BCC2017/1893344

MEMBER:Mary Sheargold

DATE:21 June 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal does not have jurisdiction in relation to these applicants.

Statement made on 21 June 2018 at 10:28am

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) visas – Subclass 187 Regional Sponsored Migration Scheme – Primary applicant outside migration zone at date of application for review – Members of the family unit

LEGISLATION

Migration Act 1958, ss 5(1), 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 10 May 2018, to refuse to grant Regional Employer Nomination (Permanent) visas 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 16 May 2018. For the following reasons, the Tribunal has no jurisdiction to review the decision in relation to the applicants named in this decision as their 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. The Department’s movement records show that the primary applicant, Mrs Harpreet Kaur Athwal, and the secondary applicants, Miss Manikrat Kaur Athwal, and Master Sahibjeet Singh Athwal, were not in the migration zone at the time the review application was lodged. According to those movement records, these applicants entered to Australia on 20 May 2018, 4 days after the review application was lodged.  The Tribunal notes that the Department’s movement records show that one of the secondary applicants listed in the review application, Mr Sukhvir Singh Athwal, did appear to be in Australia on 16 May 2018, the date on which the review application was lodged.

5. On 4 June 2018, the Tribunal wrote to the applicants inviting them to comment on the validity of their review application and stated that in order to have made valid applications for review, Mrs Harpreet Kaur Athwal, Miss Manikrat Kaur Athwal, and Master Sahibjeet Singh Athwal must have been in Australia at the time the applications were lodged with the Tribunal on 16 May 2018, and that it appeared that they were not in Australia on that date.  The applicants were given until 18 June 2018 to provide their comments in writing.  At the date of this decision, no comments have been received by the Tribunal. 

6. Therefore, the Tribunal finds that the applicants were not in the migration zone at the relevant time. As such, their application for review is not an application properly made under s.347 and it follows that the Tribunal does not have jurisdiction in relation to Mrs Harpreet Kaur Athwal, Miss Manikrat Kaur Athwal, and Master Sahibjeet Singh Athwal.

   DECISION

7. The Tribunal does not have jurisdiction in relation to these applicants.

   Mary Sheargold
   Member