Huang (Migration)

[2017] AATA 2117

Huang (Migration) [2017] AATA 2117 (18 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ying Huang
Mr Yaxiong Yao
Mr Dongyu Yao

CASE NUMBER:  1716487

DIBP REFERENCE(S):  BCC2016/2179520

MEMBER:Hugh Sanderson

DATE:18 October 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal does not have jurisdiction in this matter in respect of the applications of the first named applicant, Ms Ying Huang, and the second named applicant, Mr Yaxiong Yao.

The Tribunal affirms the decision not to grant the third named visa applicant, Mr Dongyu Yao, the Employer Nomination Scheme (Class EN) visa.

Statement made on 18 October 2017 at 2:50pm

CATCHWORDS

Migration – Employer Nomination Scheme (Class EN) visa – Subclass 186 Employer Nomination Scheme - No jurisdiction – Invalid applications – Not present in migration zone – Remaining member of family unit – Did not meet primary criteria

LEGISLATION

Migration Act 1958, ss 5(1), 65, 338(2), 347(2)(a) and (3)

Migration Regulations 1994, Schedule 2, cl 186.311

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 14 July 2017, 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 28 July 2017. For the following reasons, the Tribunal has no jurisdiction to review the decision in respect of the first and second named applicants as the application was not made in accordance with the relevant legislation.

3. The first named applicant was the primary applicant for a subclass 186 Employer Nomination Scheme visa. The second and third named applicants, who are her husband and son, applied as members of her family unit.

   Jurisdiction in respect of the first and second named applicants

4. 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.

5. The first named applicant departed Australia on 3 July 2017. She has not returned since that date. The second named visa applicant departed Australia on 9 July 2016. He has not returned to Australia since that date. The movement records of the third named applicant showed that he arrived in Australia on 6 January 2017 holding a subclass 571 Student visa and had not departed Australia since that date.

6. The Tribunal wrote to the applicant on 31 August 2017 noting that as the first and second named applicants were not in Australia on the date the review applicant was lodged with the Tribunal it appeared the applications were not valid and the Tribunal did not have jurisdiction. The applicant was invited to comment on this information by 14 September 2017. No response was received from the applicant.

7. The Department’s movement records show the first and second named applicants were not in Australia at the time the review application was filed. The Tribunal finds that the applicants were not in the migration zone at the relevant time. As such, the application for review of the first and second named applicants is not an application properly made under s.347 and it follows that the Tribunal does not have jurisdiction in this matter in respect of the first and second named applicants.

   Application of the third named applicant

8. The Tribunal wrote to the third named applicant pursuant to s.359A and s.359(2) of the Act on 3 October 2017 in respect of the application of the third named applicant.

9. It was noted that as the primary visa applicant, Ying Huang, departed Australia on 3 July 2017 and was not in Australia at the time the review application was lodged on 28 July 2017 the Tribunal did not have jurisdiction in respect of her application. On that basis, the Department’s decision to refuse the application would stand. As the only basis of the application for the third named applicant was that he was a member of the family unit of the primary visa applicant, and as her application had been refused and there was no jurisdiction for the Tribunal to review that decision, the third named visa applicant did not meet the criteria in cl.186.311 that he was a member of the family unit of a person who had met the primary criteria. The third named applicant was required to comment on or respond to this information by 17 October 2017. He was also requested to provide any further information or documents to indicate that he would meet the criteria for the grant of the visa. At the time of this decision, no response or information has been received from the third named applicant or anyone on his behalf.

10. In the letter to the applicant, the Tribunal advised the applicant that on the Department’s file a certificate under s.375A of the Act had been issued. A copy of that certificate was provided. The applicant was invited to comment in respect of the validity of that certificate. No response was received.

11. The third named applicant has not made any claims and no information has been provided that he meets the primary criteria for the grant of the subclass 186 Employer Nomination Scheme visa. The only basis of his application is that he is a member of the family unit of a person (the primary applicant) who holds a subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa. The person the third named applicant is relying upon to have satisfied the primary criteria is his mother. Her application has been refused by the Department and as she was not in Australia at the time the review application was filed and as set out above Tribunal does not have jurisdiction to consider her application. The decision not to grant her the subclass 186 visa stands. There is no other member of the family unit of the third named applicant who satisfies the primary criteria or has made any application that they meet the primary criteria.

12. As there is no member of the family unit of the third named applicant who satisfies the primary criteria with whom he has made a combined application the third named applicant does not meet the criteria in cl.186.311 and the decision to refuse his application must be affirmed.

    DECISION

13. The Tribunal does not have jurisdiction in this matter in respect of the application of the first named applicant, Ms Ying Huang, and the second named applicant, Mr Yaxiong Yao.

14. The Tribunal affirms the decision not to grant the third named visa applicant, Mr Dongyu Yao, the Employer Nomination Scheme (Class EN) visa.

    Hugh Sanderson
    Member