Nhim (Migration)

[2017] AATA 60

Nhim (Migration) [2017] AATA 60 (3 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Van Hen Nhim

VISA APPLICANTS:  Mr MENGHOUR IM
Mr MENG HONG IM

CASE NUMBER:  1616450

DIBP REFERENCE(S):  CLF2016/64699

MEMBER:Di Hubble

DATE:3 January 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 03 January 2017 at 11:45am

CATCHWORDS

Migration – New Zealand Citizen (Family Relationship) (Temporary) visa – Subclass 461 – Visa applicants not within migration zone at application – Error in department’s letter – No requirement for sponsor to be in Australia at time of lodgement – No response from applicant

LEGISLATION
Migration Act 1958

, ss 65, 338, 347, 411, 412

Administrative Appeals Tribunal Act 1975,

s 29

Migration Regulations 1994

, Schedule 2, r 4.02(4), Part 461.2

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 6 October 2016 for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the visa applicants New Zealand Citizen (Family Relationship) (Temporary) (Subclass 461) visas under s.65 of the Migration Act 1958 (the Act).

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

3. A decision is reviewable under s.338(2) if the visa applicant made the application for the visa while in the migration zone. ‘Migration zone’ is defined in s.5(1) of the Act and, generally speaking, means the Australian States and Territories.

4. The Tribunal formed the preliminary view that it did not have jurisdiction in this matter because the visa applicants were not physically present in the migration zone when they applied for the visas.

5. A Tribunal officer wrote to the review applicant on 17 November 2016 inviting his comment by 1 December 2016 on the validity of the application for review.  However, the letter was in error as it stated that in order for the review application to be valid, the review applicant (rather than the visa applicants) must have been in Australia at the time the visa application was made on 25 May 2016.

6. On 1 December 2016 the Tribunal received the representative’s response on the review applicant’s behalf. The representative correctly pointed out that because the visa applicants were clearly outside Australia at all times, they have no right of review under s.338(2) of the Act. The representative submitted that the visa applicants’ right of review is via their sponsor. Although the sponsor was not in Australia at the time the review application was lodged, from the representative’s reading of s.338(5) of the Act there is no requirement that the sponsor be in Australia at the time of lodgement.

7. On 1 December 2016 a Tribunal officer issued a further invitation to the review applicant to comment, by 15 December 2016, on the validity of the application for review.  That letter correctly states that in order for the review application to be valid, the visa applicants must have been in Australia at the time the visa application was lodged on 25 May 2016.

8. No response was received to that letter, either by 15 December 2016 or subsequently.

9. Section 338(5) of the Act provides that:

   A decision to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:

   (a)      the visa is a visa that could not be granted while the non-citizen is in the migration zone; and

   (b)      the non-citizen, as required by a criterion for the grant of the visa, was sponsored or nominated by:

   (i)      an Australian citizen; or

   (ii)      a company that operates in the migration zone; or

   (iii)      a that operates in the migration zone; or

   (iv)      the holder of a ; or

   (v)      a New Zealand citizen who holds a special category visa.

10. The primary criteria for the grant of a Subclass 461 visa are set out in Part 461.2 of Schedule 2 to the Regulations. Contrary to s.338(5)(b), there is no requirement under Part 461.2 for the non-citizen to be sponsored or nominated. The Tribunal notes this is notwithstanding the fact that the delegate’s decision incorrectly states: “your sponsor is entitled to apply for a review of this decision to the Administrative Appeals Tribunal”.

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

    DECISION

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

    Di Hubble
    Member