Huang (Migration)

[2018] AATA 5922

Huang (Migration) [2018] AATA 5922 (9 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Yongping Huang
Mr Junzhou Yin
Ms Xiaotong Yin
Mr Yintao Yin

CASE NUMBER:  1821800

DIBP REFERENCE(S):  BCC2017/2297540

MEMBER:R. Skaros

DATE:9 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 09 October 2018 at 9:09am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – application for review may only be made by sponsor – visa applicants applied for review – prescribed fee not paid – no request for fee reduction – application not made in accordance with legislation – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 347
Migration Regulations 1994 (Cth), Schedule 2, r 4.02

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 25 June 2018, to refuse to grant Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act). The primary visa applicant (the first named review applicant) was offshore at the time of the visa application. Departmental records also indicate that the second and third named review applicants were not in Australia at the time of the visa application. The decision in respect of the first, second and third named review applicant is therefore reviewable under s.338(9) of the Act.

2. The fourth named review applicant was onshore at the time of the visa application, as such the decision in relation to the fourth named review applicant is reviewable under s.338(2) of the Act.

3. The review application was lodged with the Tribunal on 27 July 2018 by the visa applicants. The Tribunal also notes that the review application was not accompanied by the prescribed filing fee and no request had been made that the filing fee should be reduced.

4. 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.

5. Section 347(2) and r.4.02(5) of the Migration Regulations 1994 specify 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(9) and r.4.02(4)(l), an application for review may only be made by the sponsor r.4.02(5)(k). In this case, it was the visa applicants who applied for review.

6. Pursuant to s.347(1) of the Act and r.4.13 of the Migration Regulations 1994, this application had to be given to the Tribunal within the prescribed period, as specified in s.347(1)(b) and r.4.10, and accompanied by the prescribed fee unless a determination has been made under r.4.13(4) that the fee should be reduced on the basis of financial hardship. In this case, no fee had accompanied the application for review and no request was made for the prescribed fee to be reduced.

7. The Tribunal invited the applicants to comment on the validity of their application for review. A response was due by 3 October 2018, however to date no response has been received.

8. As the decision that is the subject of the review application, in respect of the first, second and third named review applicants, is a decision covered s.338(9) and r.4.02(4)(l) the application for review could only be made by the sponsor, in respect of those applicants. In the present case, the review application was made by the visa applicants. 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 respect of the first, second and third named review applicants.

9. Further to the above, the Tribunal also finds that the prescribed fee has not been paid and no determination has been made (or requested) that the fee should be reduced. In these circumstances, this application for review is not a valid application and the Tribunal has no jurisdiction in this matter.

   DECISION

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

    R. Skaros
    Member