BABOORAM (Migration)

[2017] AATA 1755

BABOORAM (Migration) [2017] AATA 1755 (28 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Keeran BABOORAM
Mr Gurpreet SINGH PADAM

CASE NUMBER:  1717617

DIBP REFERENCE(S):  BCC2016/4260312

MEMBER:Hugh Sanderson

DATE:28 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 28 August 2017 at 2:20pm

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) visa – Not in migration zone at time of application

LEGISLATION

Migration Act 1958, ss 5(1), 65, 338(7A), 347(2)

Migration Regulations 1994, Schedule 2

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 21 July 2017, 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(7A) of the Act.

2. The review application was lodged with the Tribunal on 10 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(7A), 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 both the primary decision and the application for review are made: s.347(2)(a) and (3A). ‘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 the first named applicant departed Australia on 14 August 2016 and the second named applicant departed Australia on 15 August 2016 and neither has returned to Australia since then.

5. The Tribunal wrote to the applicant’s agent on 14 August 2017 noting that as at the time of the review application the applicants were not present in Australia it did not appear that it was a valid application. The applicant’s agent responded on 25 August 2017 noting they proceeded with the application as they had already lodged a review for the employer’s nomination refusal. It was stated that “if application has been considered as Invalid then we want to confirm you to process with invalidating the application”.

6. The Tribunal finds that the applicants were 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.

   Hugh Sanderson
   Member