Floorwise Pty Ltd (Migration)

[2018] AATA 3424

Floorwise Pty Ltd (Migration) [2018] AATA 3424 (20 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Floorwise Pty Ltd

VISA APPLICANT:  Mr Henry Garcia Reyes

CASE NUMBER:  1818205

DIBP REFERENCE(S):  BCC2017/1578236

MEMBER:Nicola Findson

DATE:20 August 2018

PLACE OF DECISION:  Perth

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

Statement made on 20 August 2018 at 4:26pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – incorrect applicant – no jurisdiction

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 31 May 2018, to refuse to grant a Temporary Business Entry (Class UC) 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 21 June 2018. 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), 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 delegate’s decision record, which accompanied the application for review, advises that it is the visa applicant who is entitled to apply for merits review.  Departmental information available to the Tribunal indicates that the visa applicant was in Australia when the review application was lodged. 

5. On 22 June 2018, the Tribunal wrote to the review applicant and advised that its preliminary view was that the application for review is not a valid application.  The letter advised that the person who is entitled to apply for a review of the delegate’s decision to refuse the visa is the visa applicant, whose particulars were included in the visa application.  The letter invited the review applicant to make any comments on the validity of the application for review, in writing, by 6 July 2018.

6. An officer of the Tribunal spoke with a representative of the review applicant on 3 July 2018 by telephone.  During that conversation it was noted that any amended review application would be made outside the 21 day prescribed period within which the review application could be made.

7. On 5 July 2018, the Tribunal received a submission from the review applicant’s representative in which he confirmed that the review applicant had lodged the review application on 21 June 2018 and that it was not the visa applicant. It was submitted that there had been a “human error” when the review application was made. It was submitted that the review applicant was assisting the visa applicant, with his complete knowledge and approval. The representative asked the Tribunal to review the matter.  The response was also accompanied by a letter from the visa applicant stating that the review applicant had assisted him with completing and lodging his visa application.

8. The Tribunal has considered the eM1 Application for review – online lodgement made on 21 June 2018.  It clearly states that the review applicant is Floorwise Pty Ltd.  In response to the question ‘Capacity to apply for review’ it states ‘sponsor or nominator’.  In the Tribunal’s view these responses do not suggest that the visa applicant was making the application for review.  The application for review clearly indicates that it is Floorwise Pty Ltd applying for review. 

9. As the decision that is the subject of the review application is a decision covered by s.338(2), the application for review could only be made by the non-citizen who is the subject of the decision. In the present case, the review application was made by Floorwise Pty Ltd, an entity with no standing to make the application. 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

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

    Nicola Findson
    Member