Hongchoon (Migration)

[2018] AATA 4721

Hongchoon (Migration) [2018] AATA 4721 (23 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Pilaiporn Hongchoon
Mr Alexis Charles-Edouard Ribault

CASE NUMBER:  1829482

DIBP REFERENCE(S):  BCC2017/4990520

MEMBER:Ian Berry

DATE:23 November 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 23 November 2018 at 11:37am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) visas – Subclass 186 Employer Nomination Scheme – applicant not in the migration zone at time of review application – 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 1 October 2018, to refuse to grant Employer Nomination (Permanent) visas 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 9 October 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.

   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.

   FINDINGS AND REASONS

4. The Department’s movement records show the 1^st named applicant departed Australia on 16 September 2018 and was absent from Australia, at the least, to 19 October 2018. Similarly, the 2^nd named applicant departed Australia on 10 June 2012 and had not returned by 19 October 2018. In summary, both applicants were absent from Australia on 9 October 2018 and on 19 October 2018.

5. By Tribunal letter dated 19 October 2018, the Tribunal’s preliminary finding of no jurisdiction for this Tribunal to review the applicant’s application, was put to the applicants through their migration representative. On that same day a telephone call between the migration representative for the applicant’s and the Tribunal administrative staff suggested that if the applicant could be in the migration zone by 22 October 2018 then a new application could be lodged with the appropriate application fee. It would then be a matter for the Tribunal to decide on jurisdiction.

6. The applicants lodged a 2^nd  application for review on 19 October 2018. The Tribunal responded by letter dated 24 October 2018 advising of its acknowledgement.

7. A further ‘movements check’ of the Department’s records indicated that the applicants were offshore when the application for review was lodged on 19 October 2018.

8. Therefore, 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, subject to any submissions for or on behalf of the applicant’s, it follows that the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Ian Berry
   Member