CHEN (Migration)

[2017] AATA 1780

CHEN (Migration) [2017] AATA 1780 (27 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ming Chen

CASE NUMBER:  1713468

DIBP REFERENCE(S):  BCC2016/3254589

MEMBER:Katie Malyon

DATE:27 July 2017

PLACE OF DECISION:  Sydney

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

Statement made on 27 July 2017 at 3:38 pm

CATCHWORDS

Migration – Employer Nomination (Permanent) Visa – Subclass 186 Employer Nomination Scheme – Visa Application out of Australia

LEGISLATION

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision b a delegate of the Minister for Immigration, dated 15 June 2017, to refuse to grant Mr Ming Chen an Employer Nomination (Permanent) 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 24 June 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(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 s.347(3) of the Act (emphasis added). The term ‘migration zone’ is defined in s.5(1) of the Act and, generally speaking, means Australia’s States and Territories.

4. Departmental records indicate that Mr Chen was not in Australia on 24 June 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 he was not in Australia when the application was lodged.  On 29 June 2017, the Tribunal wrote to Mr Chen inviting comments on the validity of his application for review.  His representative replied on 30 June 2017 acknowledging that they had “noticed the invalid application issue” and advised that a fresh application had been lodged with the Tribunal (after Mr Chen returned to Australia).

5. The Department’s movement records show Mr Chen left Australia on 1 March 2017 and did not return until 27 June 2017.  In the circumstances, it is evident that he was not in Australia on 24 June 2017 when his representative lodged his application for review with the Tribunal. 

6. The Tribunal finds that Mr Chen 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

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

   Katie Malyon

   
   Member