LAPWANITSAKULLAP (Migration)

[2018] AATA 2081

LAPWANITSAKULLAP (Migration) [2018] AATA 2081 (10 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Porntawee LAPWANITSAKULLAP
Ms NUTCHAREE RUNGROTMONGKON

CASE NUMBER:  1803202

DIBP REFERENCE(S):  BCC2016/3565592

MEMBER:Bridget Cullen

DATE:10 May 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 10 May 2018 at 2:14pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Incorrect applicant – Visa applicant not in migration zone

LEGISLATION

Migration Act 1958, ss 65, 338, 347
Migration Regulations 1994, r 4.02

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 January 2018, to refuse to grant Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(9) of the Act.

2. The review application was lodged with the Tribunal on 7 February 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. Subsection 347(2) and subregulation 4.02(5) of the Migration Regulations 1994 ('the Regulations') specify who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. Paragraph 4.02(4)(l) provides, in effect, that a decision to refuse to grant a Subclass 457 visa to a non-citizen is prescribed for s.338(9) if the non-citizen is outside Australia at the time of application and the person was sponsored or nominated by a company that operates in the migration zone. It is then provided in paragraph 4.02(5)(k) that in that case the application for review may only be made by the sponsor or nominator.

4. In this instance, the visa application was lodged on 26 October 2016 whilst the visa applicant was offshore. Accordingly the sponsor had the right to apply for review. However, the visa applicants purported to apply for review.

5. On 12 February 2018, the Tribunal wrote to the visa applicants through their representative, inviting them to comment by 26 February 2018 on the validity of the application for review, noting that the person entitled to apply for the review was the sponsor or nominator whose details were included in the visa application.

6. The applicants’ representative has filed a response to the Tribunal’s invitation, on 22 February 2018, together with a letter of support from the sponsor.  Those submissions acknowledge that the visa applicants were not in Australia at the time of the application, having departed on 25 October 2016.  The representative explains that the when the application was submitted the primary visa applicant held a valid student visa, which is valid until 2019.  The representative acknowledges that an error was made in naming the visa applicants, rather than the sponsor, at the time of application to the Tribunal.

7. The Tribunal does not have discretion to rectify this error, or to disregard the fact that the visa applicants were offshore at the time of application.

8. As the decision that is the subject of the application for review is a decision covered subsection 338(9) and subregulation 4.02(4)(l), it could only be made by the sponsor. In the present case, the application for review was made by the visa applicants. As such, the application for review is not an application properly made under section 347 and it follows that the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Bridget Cullen
   Member