Mohsin (Migration)

[2018] AATA 4724

Mohsin (Migration) [2018] AATA 4724 (21 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sadia Mohsin
Mr Chaudhry Mohsin Ali
Mr Hamza Ali
Mr Haider Ali
Miss Fatima Ali

CASE NUMBER:  1831578

HOME AFFAIRS REFERENCE:                BCC2017/3713718

MEMBER:Lilly Mojsin

DATE:21 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 21 November 2018 at 11:30am

CATCHWORDS

MIGRATION – Skilled Regional Sponsored (Provisional) visas – Subclass 489 Skilled – Regional (Provisional) – incorrect applicant – sponsor’s policy not to appeal – no jurisdiction

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 8 October 2018, to refuse to grant Skilled Regional Sponsored (Provisional) 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 27 October 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. Section 347(2) and r.4.02(5) of the Migration Regulations 1994 specify 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(9) and r.4.02(4)(la) an application for review may only be made by the applicant’s sponsor or nominator: r.4.02(5)(ka).

4. The department's notification letter dated 8 October 2018, that accompanied the primary decision, relevantly advised the applicants “your sponsor or nominator is entitled to apply for review of this decision to the Administrative Appeals Tribunal”.

5. On 31 October 2018, the Tribunal wrote to the applicant advising that the person required to apply for review of the visa refusal is the applicant’s sponsor or nominator.

6. The applicant responded on 11 November 2018 stating that her sponsor was SA Immigration. She contacted SA Immigration and was advised that their policy was not to question a decision of the Department.  She provided a letter of confirmation from Immigration SA supporting her claim. She requested that she be allowed to apply for review to provide that her application is genuine.

7. The Tribunal has considered the applicants' submission however finds that person entitled to apply for review of the decision to refuse the visa is the sponsor or nominator and whose particulars were included in the visa application, Immigration SA. The Tribunal does not have any discretion.

8. Therefore, the applicants have no standing  to apply for review.

9. As the decision that is the subject of the review application is a decision covered s.338(9) and r.4.02(4)(la)(ii), the application for review could only be made by Immigration SA.

10. 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

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

    Lilly Mojsin
    Member