Janjua (Migration)

[2019] AATA 2812

Janjua (Migration) [2019] AATA 2812 (21 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sonia Janjua
Mr Satnam Singh Gill
Ms Aseem Noor Gill
Master Avarnoor Singh Gill

CASE NUMBER:  1837615

DIBP REFERENCE(S):  BCC2018/1988788 PNJ

MEMBER:Mark Bishop

DATE:21 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 21 February 2019 at 8:11am

CATCHWORDS

MIGRATION – Skilled Regional Sponsored (Provisional) visas – Subclass 489 Skilled - Regional (Provisional) – 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 18 December 2018, to refuse to grant Skilled Regional Sponsored (Provisional) 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 21 December 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. On 10 January 2019 the Tribunal wrote a natural justice letter to the applicant. The natural justice letter informed the applicant the person entitled to apply to the Tribunal in relation to the decision is the sponsor or nominator. The applicant was not the said person. The Tribunal invited the applicant to provide a written response by 24 January 2019. The applicant did not respond.

5. 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 the applicant who was neither sponsor nor nominator. 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

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

   Mark Bishop
   Member