Liu (Migration)

[2017] AATA 1758

Liu (Migration) [2017] AATA 1758 (25 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yongqiang Liu
Ms Fengzhi Guo
Mr Tianlong Liu
Mr Tianyi Liu

CASE NUMBER:  1716493

DIBP REFERENCE(S):  BCC2016/1416851

MEMBER:R. Skaros

DATE:25 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 25 August 2017 at 1:57pm

CATCHWORDS

Migration – Employer Nomination (Permanent) visa – Not in migration zone at time of application

LEGISLATION

Migration Act 1958, ss 5(1), 65, 338(7A), 347(2)

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 25 July 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 28 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(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 the application for review. On this basis, the Tribunal formed the preliminary view that the application was not validly made. On 8 August 2017 the Tribunal wrote to the applicants and invited the applicants to comment on the validity of the application for review. The response was due on 22 August 2017, however to date no response has been received.

5. As the Department’s movement records show that the applicants were not in Australia at the time of the review application, the Tribunal finds that the applicants were not in the migration zone at the relevant time. 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

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

   R. Skaros
   Member