Nguyen (Migration)

[2022] AATA 1486

Nguyen (Migration) [2022] AATA 1486 (14 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Professor Frank Joseph Martin

Mr Nhu Quan Nguyen
Mrs Mai Ngan Nguyen
Miss Nhu Mai Han Nguyen
Master Nhu Huan Nguyen
Miss Mai Nhu Han Nguyen
Master Nhu Tuan Nguyen

REPRESENTATIVE:  Mrs Jenny Tran

CASE NUMBER:  2112578

HOME AFFAIRS REFERENCE(S):          BCC20201301806

MEMBER:Wan Shum

DATE:14 February 2022

PLACE OF DECISION:  Sydney

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

Statement made on 14 February 2022 at 1:52pm

CATCHWORDS
MIGRATION – Distinguished Talent (Migrant) (Class AL) visa – Subclass 124 (Distinguished Talent) – legislative amendments – application for review must be made by subject of decision who was in migration zone when primary decision and application for review made – applicants not in Australia at relevant times – COVID-19 travel restrictions – application for review made by nominator – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 338(5), (7A), 347(2)(a), (3A)
Migration Regulations 1994 (Cth), Schedule 2, cl 124.411, Schedule 13, cl 9503(1)

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 Home Affairs, dated 12 July 2021, to refuse to grant Distinguished Talent (Migrant) (Class AL) visas under s 65 of the Migration Act 1958 (Cth) (the Act). This decision is reviewable under s 338(7A) of the Act.

2. The review application was lodged with the Tribunal on 17 September 2021. The first named applicant was identified as the sponsor/nominator, while the remaining applicants are the visa applicants. 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 this case, the letter notifying of the decision to refuse to grant the visas stated that the nominator is entitled to apply for review.

4. The Tribunal had also stated that the person who is entitled to apply for review of the decision to refuse to grant the visa applicants Distinguished Talent (subclass 124) visas in relation to these decisions is the nominator in its letter of 15 November 2021. However, following amendments to Part 124 of the Regulations which commenced on 27 February 2021, this was not correct. One of the transitional provisions affecting Subclass 124 visas, specifically clause 9503(1) of sch 13 to the Migration Regulations 1994 (Cth) (the Regulations), provides that cl 124.411 does not apply to Subclass 124 visa applications if the application was made before 14 November 2020 and the application was not finally determined before 27 February 2021 and the applicant is not in immigration clearance when the visa is granted.

5. The effect of these transitional provisions is that cl 124.411 does not apply to this matter and therefore, the visa could have been granted while the applicants were either in or outside the migration zone. Accordingly, the decision to refuse to grant the visa applicants Distinguished Talent (Migrant) visas is reviewable by the MRD under s 338(7A) of the Act and not s 338(5).

6. 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. Therefore, pursuant to s 347(2)(a) of the Migration Act 1958 (Cth) it is the visa applicants who are entitled to apply to the Tribunal in relation to these decisions and in order to have made a valid application, the visa applicants must have been in Australia at the time the delegate refused the visa application on 12 July 2021 and at the time the application for review was lodged on 17 September 2021.

7. The Department’s movement records show that at the time of primary decision and the review application, all the visa applicants were not in Australia.

8. In response to the Tribunal’s natural justice letter of 16 December 2021, the response was that the visa application for Dr. Nguyen Nhu Quan for the Distinguished Talent (subclass 124 – Class AL) visa was lodged on 2 April 2020 as an offshore visa, and at the time of application all visa applicants were offshore with only the nominator, Prof. Joseph Martin, being onshore.

9. The representative wrote that because of the COVID-19 pandemic, border restrictions had been issued for non-resident and non-Australian Citizens so that the visa applicants could not be in Australia to wait for the decision. It is claimed that on 12 July 2021, when the applicant and his dependants received a decision from the Department to refuse his application and on 24 September 2021, the applicants could not be in Australia “[d]ue to border close and travel ban” made in both countries, Viet Nam and Australia.

10. While the Tribunal accepts that there were border closures and travel restrictions in place on or around the time the application was refused and when the application for review was made, there is no exception to the requirement that the visa applicants be in the migration zone at these points in time for review of a decision to refuse to grant Subclass 124 visas that were lodged before 14 November 2020 and not finally determined by 27 February 2021. Although the nominator was in Australia, he is not entitled to apply for review in the circumstances of this case.

11. The Tribunal finds that the applicants were not in the migration zone at the relevant times and the nominator did not have standing to apply for review. 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

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

    Wan Shum
    Member