Konsa (Migration)

[2017] AATA 1692

Konsa (Migration) [2017] AATA 1692 (24 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Helin Konsa
Mr Marek Toonverk

CASE NUMBER:  1710544

DIBP REFERENCE(S):  BCC2016/3652575 BCC2016/3683012

MEMBER:Christopher Smolicz

DATE:24 July 2017

PLACE OF DECISION:  Adelaide

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

Statement made on 24 July 2017 at 4:48pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – Visa applicant lodged review application – No standing to apply for review

LEGISLATION
Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 338, 347, 411, 412
Migration Regulations 1994, r.4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 17 May 2017 in respect of a decision to refuse to grant the applicants Regional Employer Nomination (Permanent) visas.

2. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

3. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to refuse and cancel visas of various kinds and a range of sponsorship and nomination decisions, but the evidence before the Tribunal indicates that at the time the review application was lodged, no relevant decision had been made.

4. In this case, the Tribunal has reviewed its records and those of the Department and finds that on 2 November 2016 Jaad Holdings Pty Ltd lodged a nomination application under the Direct Entry Stream (RSMS) for a Secretary (General). The nominee in this application was identified as Ms Helin Konsa (the first named applicant) who had applied for a Subclass 187 visa. On 1 May 2017 the Department refused the nomination application made by Jaad Holdings Pty Ltd. The applicants provided the Tribunal with a copy of the delegate’s decision refusing the nomination.

5. The Tribunal has had regard to the Department’s records and finds that when the current review application was lodged with the Tribunal the Department had not yet made a decision in relation to the first named applicant’s Subclass 187 visa application.

6. On 19 May 2017 the Tribunal wrote to the applicants and invited them to comment on the preliminary view that the review application was not valid because there was no reviewable decision. The letter advised the applicants that only the sponsoring employer (Jaad Holdings Pty Ltd) has standing to apply to the Tribunal for review of a decision to refuse an employer nomination.

7. The Department’s records confirm that the applicants’ subclass 187 visa application was refused on 31 May 2017.The first named applicant confirmed that she has now lodged a new review application with the Tribunal in relation to the subclass 187 visa application. The first named applicant also advised the Tribunal that her sponsoring employer had lodged an application for review with the Tribunal in relation to the nomination refusal.

8. The Tribunal finds that as no reviewable decision had been made in relation to the first named applicant’s subclass 187 visa application at the time the review application was lodged it follows that the application was not properly made and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Christopher Smolicz
   Member