Goals International PTY LTD (Migration)

[2017] AATA 2337

Goals International PTY LTD (Migration) [2017] AATA 2337 (9 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Goals International Pty Ltd

VISA APPLICANT:  Ms Sonja Jane Shear

CASE NUMBER:  1725350

DIBP REFERENCE(S):  BCC2017/2315726

MEMBER:Alison Mercer

DATE:9 November 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 09 November 2017 at 9:56am

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) – Subclass 187 (Regional Employer Nomination – Direct Entry stream visa – Incorrect Review application – Visa applicant outside of the Migration Zone – Review out of time

LEGISLATION

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

Migration Regulations 1994, Schedule 1 cl 1114C(3)(b), Schedule 2 cl 187.411

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 26 September 2017, to refuse to grant the visa applicant, Ms Sonja Jane Shear, a Regional Employer Nomination (Permanent) subclass 187 (Regional Employer Nomination – Direct Entry stream) visa under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(7A) of the Act.

2. A review application was lodged with the Tribunal on 17 October 2017 by Goals International Pty Ltd, the 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 is physically present in the migration zone when the application for review is 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 19 October 2017, the Tribunal wrote to Mr Zackey Anton, the Business Director of Goals International Pty Ltd, via his registered migration agent Mr Gerrit Jansen Van Rensburg, to invite him (or another authorised person from Goals International Pty Ltd) to comment on whether the review application made on 17 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 visa applicant, Ms Shear, but that the review application had been lodged by Goals International 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 Ms Shear, she had to have been in the migration zone (Australia) when the visa refusal decision was made on 26 September 2017 and at the time the review application was lodged on 17 October 2017, but it appeared from the Department’s movement records that she was not in Australia on either of those dates. Mr Anton (or another authorised person from Goals International Pty Ltd) was invited to comment by 2 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. On 2 November 2017, the applicant’s agent Mr Van Rensburg provided a response, in which he quoted sections of the Department’s Procedures Advice Manual (PAM3) on AAT Review of Part 5 – Reviewable Decisions – Guide for Primary Decision Makers.  The agent noted that in the case of a decision to refuse to grant a visa in circumstances where the application was made while the applicant was outside Australia, and the decision was a Part 5 – reviewable decision, the visa applicant could not apply to the Tribunal for merits review, as only the Australian sponsor, nominator or close relative could do so.  The agent noted that one of the examples of visa category provided in PAM3 to illustrate the above advice was the Class EN subclass 186 (Employer Nomination Scheme) visa, in relation to which it was stated that the sponsor had the right of review in relation to a visa refusal (not the visa applicant). He submitted that it was safe to assume that this also went for the subclass 187 visa, as both visa categories involved being sponsored by an Australian employer. He submitted that therefore the review application was validly lodged by the nominating Australian employer in this case.

6. From the Department’s and Tribunal’s records, the Tribunal is satisfied that the visa applicant was outside the migration zone (Australia) at the time that she made her visa application on 29 June 2017, at the time that the Department refused the visa on 26 September 2017, and at the time that the review application was lodged on 17 October 2017.

7. As noted above, s.338(7A) is the applicable subsection in the case of a Class RN subclass 187 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.187.411 of Schedule 2 to the Regulations, which sets out the ‘Circumstances applicable to grant’ provides that a subclass 187 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.1114C(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 applicant’s scenario.

9. The Tribunal is therefore satisfied that the correct provision of s.338 in this case is s.338(7A).

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 Ms Shear, and not Goals International 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 17 October 2017, it is not possible for this situation to be rectified, as Ms Shear is now out of time to validly lodge an application for review instead of Goals International Pty Ltd (and she 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