Liu (Migration)

[2017] AATA 2793

Liu (Migration) [2017] AATA 2793 (28 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Derun Liu
Ms Yiding Liu
Mr Eli Liu

CASE NUMBER:  1726244

DIBP REFERENCE(S):  BCC2017/2306744

MEMBER:R. Skaros

DATE:28 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 28 November 2017 at 1:24pm

CATCHWORDS

Migration – No jurisdiction - Employer Nomination (Permanent) visa – Subclass 186 Employer Nomination Scheme - Not in migration zone at relevant times – No response to invitation to comment

LEGISLATION

Migration Act 1958, ss 5(1), 65, 338(7A), 347(2), 347(2)(a), 347(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 9 October 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 26 October 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. Information before the Tribunal indicates that the applicants were not in Australia at the time of primary decision or at the time of the application for review.

5. On 9 November 2017 the Tribunal wrote to the applicants inviting them to comment on the validity of their applications for review. The response was due on 23 November 2017. No response has been received from the applicants.

6. The Department’s movement records show that the applicants were not in Australia at the time of primary decision or at the time of the review application. The Tribunal finds that the applicants were not in the migration zone at the relevant times. 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

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

   R. Skaros
   Member