Choiceliving(WA) Pty Ltd (Migration)

[2017] AATA 2339

Choiceliving(WA) Pty Ltd (Migration) [2017] AATA 2339 (13 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Choiceliving (WA) Pty Ltd

VISA APPLICANTS:  Mr Guozhi Chen
Mrs Zhiying Liu
Miss Simin Chen
Mr Wusen Chen

CASE NUMBER:  1724883

DIBP REFERENCE(S):  BCC2017/2290674

MEMBER:Alison Mercer

DATE:13 November 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 13 November 2017 at 3:15pm

CATCHWORDS

Migration – Employer Nomination (Permanent) visa – Direct Entry stream – Class EN subclass 186 visa – Application invalidly made – Applicant was outside the migration zone – Employer submitted the application – Applicant and family are required to submit the application visa

LEGISLATION

Migration Act 1958, ss 5(1), 65, 338(2)-(7A), 338(8)-(9), 347(2), 347(2)(a), 347(3A)

Migration Regulations 1994, r 4.10, Schedule 1 cls 1114B(3)(b), Schedule 2 cl 186.411

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 9 October 2017, to refuse to grant Employer Nomination (Permanent) visas (Direct Entry stream) under s.65 of the Migration Act 1958 (the Act) to the primary visa applicant Mr Guozhi Chen, and his included family unit members, Simen Chen, Wusen Chen and Zhiying Liu. This decision is reviewable under s.338(7A) of the Act.

2. The review application was lodged with the Tribunal on 12 October 2017 by Choiceliving (WA) Pty Ltd, the primary visa applicant’s proposed Australian employer. 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. On 25 October 2017, the Tribunal wrote to Mr Mario Nenadic, the Managing Director of Choiceliving (WA) Pty Ltd, via his registered migration agent Mr Steve Hou, to invite him (or another authorised person from Choiceliving (WA) Pty Ltd) to comment on whether the review application made on 12 October 2017 had been validly made. The Tribunal noted that the person entitled to apply to the Tribunal in relation to the visa application refusal was the primary visa applicant, but that the review application had been lodged by Choiceliving (WA) Pty Ltd, and therefore it appeared that it had not been validly made. The Tribunal further noted that in order for the review application to be validly made by the visa applicants, they had to have been in the migration zone (Australia) when the visa refusal decision was made on 9 October 2017 and at the time the review application was lodged on 12 October 2017, but it appeared from the Department’s movement records that none of the visa applicants were in Australia on 9 October 2017 or on 12 October 2017. Mr Nenadic (or another authorised person from Choiceliving (WA) Pty Ltd) was invited to comment by 8 November 2017, and was advised that any comments received would be considered by a Tribunal Member, who would then determine whether the review application had been validly made.

5. The Tribunal did not receive any comments from Mr Nenadic or any other authorised person from Choiceliving (WA) Pty Ltd, nor any comments from the agent.  To date, it has received no further communications from either of those parties.

6. From the Department’s and Tribunal’s records, the Tribunal is satisfied that the visa applicants were outside the migration zone (Australia) at the time that they made their visa application on 28 June 2017, at the time that the Department refused the visas on 9 October 2017, and at the time that the review application was lodged on 12 October 2017.

7. As noted above, s.338(7A) is the applicable subsection in the case of a Class EN subclass 186 visa application made offshore, as this subsection relates to a decision to refuse to grant a non-citizen a permanent residence visa, where the visa application was made outside the migration zone, and where the visa is one that could be granted while the non-citizen is either in or outside the migration zone. In this regard, the Tribunal notes that cl.186.411 of Schedule 2 to the Regulations, which sets out the ‘Circumstances applicable to grant’ provides that a subclass 186 visa applicant may be in or outside Australia when the visa is granted, but not in immigration clearance. The relevant Schedule 1 criterion also supports this (see cl.1114B(3)(b)).

8. The Tribunal notes that none of the other subparagraphs of s.338 apply to the visa refusal which is the subject of the review application for the following reasons:

   ·s.338(2) relates to visa refusals where the visa could be granted if the visa applicant is in the migration zone, and the visa applicant made the visa application in the migration zone and it is a criterion that the visa applicant is sponsored by an approved sponsor for a temporary visa;

   ·s.338(3) relates to visa cancellations;

   ·s.338(4) relates to refusals of bridging visas;

   ·s.338(5) relates to refusals of visas that could not be granted in the migration zone where the visa applicant is required to be sponsored or nominated by an Australian citizen, permanent resident or a company or partnership operating in the migration zone, or an eligible New Zealand citizen;

   ·s.338(6) relates to refusals of offshore visa applications where the applicant is required to be sponsored by a specified Australian family member;

   ·s.338(7) relates to temporary visitor visas which cannot be granted in the migration zone where the visa applicant is required to intend to visit a specified Australian family member;

   ·s.338(8) relates to decisions relating to points-test assessments; and

   ·s.338(9) relates to prescribed decisions, none of which include the visa applicants’ scenario.

9. The Tribunal is therefore satisfied that the correct provision of s.338 in this case is s.

10. For decisions reviewable under s.338(7A), s.347(2)(a) provides that an application for review may only be made by the non-citizen who is the subject of that decision.  In this case, that is the visa applicants Mr Chen and his family members, and not Choiceliving (WA) Pty Ltd. 

11. Moreover, s.347(3A) provides that if the reviewable decision comes within s.338(7A), then an application for review may only be made by a non-citizen who (a) was physically present in the migration zone when the refusal decision was made, and (b) was physically present in the migration zone when the review application was lodged.

12. In this case, the Tribunal finds that neither s.347(2)(a) nor s.347(3A) is met.  As the last day on which a review application could have been validly lodged was 30 October 2017, it is not possible for this situation to be rectified, as the visa applicants are now out of time to validly lodge an application for review instead of Choiceliving (WA) Pty Ltd (and they would in any case not meet s.347(3A)).

13. 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

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

    Alison Mercer
    Member