Jiang (Migration)

[2017] AATA 1756

Jiang (Migration) [2017] AATA 1756 (23 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Xiaomei Jiang
Mr Beiguo Zhang
Mr Bochun Zhang

CASE NUMBER:  1716478

DIBP REFERENCE(S):  BCC2016/762247

MEMBER:Hugh Sanderson

DATE:23 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 23 August 2017 at 9:07am

CATCHWORDS

Migration – Employer Nomination (Permanent) visa – Not in migration zone at time of application

LEGISLATION

Migration Act 1958, ss 5(1), 65, 338(7A), 347(2)

Migration Regulations 1994, Schedule 2

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(7A) 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 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 who is physically present in the migration zone when both the primary decision and the application for review are 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. The Tribunal wrote to the applicant on 4 August 2017 noting that the Departmental records showed all the visa applicants were not in Australia at the time the review application was lodged. This was relevant as it appeared that the application was not valid. The applicant was invited to comment on or respond to this information. No response was received from the applicant.

5. The address given by the applicant in the review application for correspondence to be sent to her is an address in China. The Department’s movement records show the review applicant’s departed Australia on 23 February 2016 and have not returned to Australia since that date. 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 it follows that the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Hugh Sanderson
   Member