Makani (Migration)

[2022] AATA 1479

Makani (Migration) [2022] AATA 1479 (1 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Mustafa Makani

REPRESENTATIVE:  Mr Aneel Khowaja (MARN: 1571699)

CASE NUMBER:  2108781

HOME AFFAIRS REFERENCE(S):          BCC2018/807519

MEMBER:Scott Clarey

DATE:1 April 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 1 April 2022 at 11:54am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – infant child born after department’s decision on parents’ visa application – no reviewable decision – no response to tribunal’s letter – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 338, 411

Migration Regulations 1994 (Cth), r 4.02(4)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 6 July 2021 for review of a Regional Employer Nomination (Permanent) visa however no primary decision refusing the visa was made by the Department of Home affairs (the Department) prior to lodgement of the review application. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

2. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (Cth) (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 (Cth). Sections 338 and 411 of the Act and reg 4.02(4) of the Migration Regulations 1994 (Cth) 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.

3. I note that the applicant is an infant child who was born after a decision was made by the Department with regard to the applicant’s parents visa application.

4. The Tribunal wrote to the applicant via email on 4 February 2022, and outlined its concerns about the validity of the application. The Tribunal did not receive a response to this letter. I note that the Tribunal had engaged in previous phone correspondence (on 13 July 2021) with the applicant’s representative regarding the validity of the application and pathways forward.

5. As no reviewable decision had been made 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

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

   Scott Clarey
   Member