LAM (Migration)

[2019] AATA 6472

LAM (Migration) [2019] AATA 6472 (21 October 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dat Tai LAM
Ms Ly Phung MOC

CASE NUMBER:  1910469

DIBP REFERENCE(S):  BCC2019/174415

MEMBER:Stavros Georgiadis

DATE OF DECISION:  21 October 2019

DATE CORRIGENDUM

SIGNED:26 February 2020

PLACE OF DECISION:  Adelaide

AMENDMENT:  The following corrections are made to the decision of 21 October 2019:

The visa subclass description referred to in paragraphs 1 and 9 that currently read as ‘Subclass 402 (Training and Research)’ are replaced with ‘Subclass 407 (Training)’.

Stavros Georgiadis
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dat Tai LAM
Ms Ly Phung MOC

CASE NUMBER:  1910469

DIBP REFERENCE(S):  BCC2019/174415

MEMBER:Stavros Georgiadis

DATE:21 October 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal does not have jurisdiction in this matter in respect of the first named applicant.

Statement made on 21 October 2019 at 1:30pm

CATCHWORDS

MIGRATION – Training (Class GF) visa – Subclass 407 (Training) – no Tribunal-reviewable decision – sponsored by an approved sponsor – approved nomination of an occupation – member of the family unit – no jurisdiction      

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 140, 338, 347, 411, 412
Migration Regulations 1994, Schedule 2 cl 407.311; r 4.02

CASES

DFQ17 v MIBP [2019] FCAFC 64     

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 26 April 2019 for review of a decision to refuse to grant the applicants a Subclass 402 (Training and Research) visa.

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 and the circumstances in which they are reviewable.

4. The Tribunal has considered the application and formed a preliminary view that the application for review of decision in relation to Mr Dat Tai Lam is invalid and wrote to the applicants inviting comment of the issue of the Tribunal’s jurisdiction to decide this matter.  The applicants’ response centres around an alleged fraud of the applicant’s representative in a manner that is not determinative of the issue of jurisdiction (but may be a matter for consideration for Ministerial intervention on the applicants’ direct application to the Minister).

5. The delegate had decided to refuse the visa on the grounds that there was no approved nomination. The secondary review applicant has a right of review, as she did not seek to satisfy the primary criteria for the grant of visa, and the grant of the visa was refused because the secondary applicant did not satisfy the secondary criteria for the visa; and the requirements in s.338(2)(a) to (c) of the Act are met in relation to the secondary visa applicant.

6. The secondary applicant sought to satisfy cl 407.311 as a member of the family unit of the primary applicant. Clause 407.311 is listed as a secondary criterion in the Migration Regulations.

7. Although the secondary applicant may have made a valid review application this is futile in circumstances where the Tribunal is found to have no jurisdiction in respect of the primary visa applicant’s review application. The decision notification in respect of the secondary applicant is incorrect in stating there is no right to merits review, but the error is not material in the circumstances here, given the findings made.

8. The review applicants are parents of the review applicant child in the related AAT casefile matter 1910494, who lodged a separate visa application and received a separate decision record.

9. A decision to refuse to grant the applicants a Subclass 402 (Training and Research) visa is potentially reviewable if the applicant made the visa application while outside the migration zone, and the applicant was sponsored or nominated as required by a criterion for the grant of the visa; or the applicant made the visa application while in the migration zone and either the applicant is sponsored by an approved sponsor at the time the application for review of the visa refusal is made, or an application for review of a decision not to approve the sponsor has been made but at the time the application for review of the visa refusal is made, review of the sponsorship decision is pending. 

   In the circumstances of this case, the decision notification is not affected by matters identified in the case of DFQ17 v MIBP [2019] FCAFC 64 relating to out of time considerations. In that case, on 18 April 2019, the Full Federal Court handed down a judgment which found that a departmental notification letter for a Part 7 (Protection) reviewable decision did not comply with the requirement to state the time in which the application for review may be made (as required by s.66(2)(d)(ii)). The consequence of that finding was that the time in which the applicant could apply for review had not started to run, and that the Tribunal erred in that case in finding that the review application was lodged out of time and that it did not have jurisdiction.  In the present case, as the notification letter advises that there is no right to merits review, it is not required to state the time in which an application for review can be made.

10. The Tribunal is satisfied that at the time of the delegate’s decision to refuse to grant the visa, Mr Dat Tai Lam was not identified in an approved nomination that has not ceased. Nor was there a valid and pending application for review before the Tribunal of a decision not to approve the sponsor under s.140E of the Migration Act 1958, or of a decision not to approve the nomination under s.140GB of the Act. Accordingly, the decision has been identified as non-reviewable due to the s.338(2)(d) requirements not being met.

11. As the delegate’s decision is not reviewable in these circumstances it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter in respect of the first named applicant.  As discussed, it is futile therefore, to make any determination relating to the second named applicant as a member of the same family unit.

    DECISION

12. The Tribunal does not have jurisdiction in this matter in respect of the first named applicant.

    Stavros Georgiadis
    Member