Khan (Migration)

[2017] AATA 1481

Khan (Migration) [2017] AATA 1481 (21 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Talha Khan
Mr Moiz Khan

CASE NUMBER:  1715733

DIBP REFERENCE(S):  BCC2016/1801883 BCC2016/2276227 BCC2016/2276295 BCC2017/2784381 BCC2017/2784436

MEMBER:Karen Synon

DATE:21 August 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 21 August 2017 at 8:23am

CATCHWORDS
Migration – Business Skills (Provisional) visa – Subclass 188 – Business Innovation and Investment (Provisional) – Application lodged prior to applicants’ arrival in Australia – Not present in migration zone at time of application – No jurisdiction

LEGISLATION
Migration Act 1958, ss 5(1), 65, 338, 347(2), (3A)

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 30 June 2017, to refuse to grant Business Skills (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 20 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(2)(b), 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 formed the preliminary view that it did not have jurisdiction in this matter because the department’s records confirm that the applicants were not in the migration zone at the time the visa application was made on 20 May 2016.

5. On 27 July 2017 the Tribunal invited comments on the issue of its jurisdiction in writing by 10 August 2016.  In response the applicants’ representative highlighted that the department’s notification letter explicitly advised the applicants that they had a right of review.

6. Despite the department’s notification letter which does advise the applicants they do have a right to seek review of the decision, department’s movement records show the visa applicants both arrived in Australia on 13 June 2016, after the visa application was lodged on 20 May 2016.  An application for a temporary visa is only reviewable when a visa applicant is in the migration zone at both the time of the visa application and the application for review.  Section 338(7A) provides that a decision to refuse a visa is a reviewable decision where a visa application is made when the visa applicant was outside the migration zone however it is only applicable to permanent visas. A Business Skills (Provisional) subclass 188 visa is not a permanent visa. As this is an application for a temporary visa, the Tribunal cannot find jurisdiction where this is not permitted by the Migration Act.

7. As the Tribunal finds that the applicants were not in the migration zone at the relevant time, the application for review is not an application properly made under s.347.  It follows that the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Karen Synon
   Member