Nasir (Migration)

[2018] AATA 4836

Nasir (Migration) [2018] AATA 4836 (18 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Muhammad Nasir

VISA APPLICANT:  Ms Qurrat Ul Ain

CASE NUMBER:  1831075

DIBP REFERENCE(S):  BCC2018/2289809

MEMBER:Katie Malyon

DATE:18 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 18 December 2018 at 11:50 am

CATCHWORDS

MIGRATION – Skilled Regional Sponsored (Provisional) visa – Subclass 489 Skilled – Regional (Provisional) – incorrect applicant – sponsored by an eligible relative – member of the family unit – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 338, 347
Migration Regulations 1994, Schedule 2 cl 489.225, 489.311; r 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision made a delegate of the Minister for Immigration, dated 10 October 2018, to refuse to grant Pakistani national Ms Qurrat Ul Ain a Skilled Regional Sponsored (Provisional) Subclass 489 visa 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 23 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. To be eligible for a Subclass 489 visa, the primary visa applicant must either be sponsored by an eligible relative or, in the alternative, nominated by a State or Territory government agency: cl.489.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations).  In the circumstances of this case, the primary visa applicant - Mr Muhammad Nasir - was invited to apply for his Subclass 489 visa after being nominated by a Queensland Government agency.  Mr Nasir applied to the Tribunal for review of the delegate’s decision to refuse the Subclass 489 visa application made by his wife, Ms Ain.

4. A decision to refuse an applicant a Subclass 489 visa is reviewable in limited circumstances only. Section 347(2) of the Act and r.4.02(5) of the Regulations 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) of the Act and r.4.02(4)(la) of the Regulations, an application for review may only be made by the sponsor or nominator: r.4.02(5)(ka) of the Regulations. Relevant provisions from the Regulations are set out below:

   4.02 Part 5-reviewable decisions and who may apply for review
   
   ..
   (4) For subsection 338(9) of the Act, each of the following decisions is a Part 5-reviewable decision:
   ...

   (la) a decision to refuse to grant a Subclass 489 (Skilled--Regional (Provisional)) visa to a non-citizen if:

   (i) the non-citizen is outside Australia at the time of application; and
   (ii) the non-citizen was sponsored or nominated, as required by a criterion for the grant of the visa, by:

   (A)  an Australian citizen; or
   (B)  a company that operates in the migration zone; or
   (C)  a partnership that operates in the migration zone; or
   (D)  the holder of a permanent visa; or
   (E)  a New Zealand citizen who holds a special category visa;

   ….
   
   

   (5)  For paragraph 347(2)(d) of the Act, an application for review of a decision mentioned in subregulation (4) may only be made by:
   …

   (ka)  in the case of a decision to which paragraph (4)(la) relates - the sponsor or nominator;

5. Departmental records confirm that Ms Ain was not in Australia at the time of lodgement of her Subclass 489 visa application. As noted above, her husband Mr Nasir was nominated for the visa by a Queensland Government agency consistent with cl.489.225(2) of Schedule 2 to the Regulations. Ms Ain applied for the visa on the basis of being a member of Mr Nasir’s family unit. Her application was refused because, having regard to evidence provided, the delegate was not satisfied that Ms Ain is a member of Mr Nasir’s family unit as required by cl.489.311 of Schedule 2 to the Regulations.

6. On 30 November 2018, the Tribunal wrote to Mr Nasir advising him that the review application could only be valid if it was lodged by the sponsor or nominator.  The letter invited his comments on the validity of his application for review.

7. Mr Nasir’s representative called the Tribunal on the final day for comments on the validity of the review application lodged by him.  He said that he did not see the point of responding to the invitation to comment on the validity of the review application given it is the sponsor or nominator who has the right of review.

8. As the decision that is the subject of the review application is a decision covered s.338(9) of the Act and r.4.02(4)(la) of the Regulations, the application for review could only be made by the sponsor or nominator, in this case, the Queensland Government agency as nominator: r.4.02(4)(la) and r.4.02(5)(ka) of the Regulations. In the present case, the review application was made by the primary visa applicant. As such, the application for review is not an application properly made under s.347 of the Act and it follows that the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Katie Malyon

   
   Member