Martins Souza (Migration)

[2024] AATA 3136

Martins Souza (Migration) [2024] AATA 3136 (16 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Philipp Augusto Martins Souza
Miss Tatiane da Silva Pinheiro
Mr Jose Vicente Pinheiro Souza

CASE NUMBER:  2219216

HOME AFFAIRS REFERENCE(S):          BCC2020/2624456

MEMBER:Alan McMurran

DATE:16 August 2024

PLACE OF DECISION:  Sydney

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

Statement made on 16 August 2024 at 3:13pm

CATCHWORDS

MIGRATION – Training (Class GF) visa – Subclass 407 (Training) – applicant not identified in an approved Training subclass 407 nomination – no Tribunal-reviewable decision – no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 338, 347, 411, 412
Migration Regulations 1994, r 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 29 December 2022 for review of a decision to refuse the applicant, Mr Philipp Augusto Martins Souza, and his two family members, his wife Ms Tatiane da Silva Pinheiro and his son Mr Jose Vicente Pinheiro Souza, a GF Training (Class GF) 407 (Training) visa.

2. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application for the primary visa applicant.

3. 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).

4. Sections 338 and 411 of the Act and reg 4.02(4) of the Migration Regulations 1994 (Cth) (“the Regulations”) all 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.

5. A decision to refuse the applicant’s 407 Training visa is 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

6. The application is not reviewable in the circumstances of this case because the applicant was not identified in an approved Training subclass 407 nomination by the intended sponsor, and consequently he was not sponsored or nominated as required by a criterion for the grant of the visa.

7. On 25 January 2023, the Tribunal sent a natural justice letter to the applicant advising that the application was invalid because the primary applicant had not been identified in an approved nomination that had not ceased. The applicant was invited to respond in writing by 8 February 2023.

8. On 8 February 2023, the applicant responded and stated as follows:

   “My name is Philipp Augusto Martins Souza my wife's name is Tatiane da Siva Pinheiro my son's name is Jose Vicente Pinheiro Souza. We have been in Australia since November 2017 always lawful, complying with all our visa conditions. My case number is: 2219216

   I respectfully request additional time to provide you with the necessary information, before you make a decision on the validity of application. This request is made due to compelling and compassionate circumstances, beyond my control. The present circumstances are:

   • I had placed my trust in a migration agent for the handling of my visa application. However, I have since learned that the agent's license has been suspended by OMARA (MARN: 1795131).
   • To my sadness the agent failed to inform me of the visa refusal and did not had time to fix it.
   • Despite this, a nomination application was made, it appears that my visa application has a nomination number.
   • Despite trying really hard to obtain information from the agent, she has yet to respond to my requests. I am making every effort to provide you with the information necessary to validate my application, but I respectfully request additional time to gather this to you. Please I am seeking your kind consideration with my case.
   • We are very sad because we were not informed at any time that our visa application was having a problem, we only found out about it at the end of December when we were applying for a BVB travel visa as we were on vacation.

   It was a real nightmare, because we didn't have enough time to fix this error, and in no time did we get a response from Monica to help us. we feel very damaged because we put our dreams and plans in the hands of someone who simply didn't care about us.
   We have a one and a half year old son who is already in daycare, we always comply with all Australian laws as it is our obligation to be in this country that welcomed us so well.

   We really need more time here to try to resolve all these issues regarding our visa.

   I would like you to look kindly at the situation and thank you in advance for this opportunity to be here.

9. The Tribunal has considered the applicant’s response. Whatever the complaint between the applicant and his retained representative or agent, that is a matter for which the applicant is ultimately responsible. The Tribunal has no discretion with which to waive statutory requirements in the Act and Regulations for the visa and the Tribunal can make no comment or response in that regard. It remains however, and the Tribunal finds that the primary applicant has not been identified in an approved nomination that has not ceased. As a result, the application by the primary applicant is invalid and cannot be considered further.

10. As the delegate’s decision is not reviewable in these circumstances it follows that the application for review by the primary applicant was not properly made and the Tribunal does not have jurisdiction in this matter.

    DECISION

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

    Alan McMurran
    Member