Pal (Migration)

[2017] AATA 711

Pal (Migration) [2017] AATA 711 (3 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Prit Pal
Ms Bhawna Sharma

CASE NUMBER:  1618797

DIBP REFERENCE(S):  BCC2016/1131375

MEMBER:Karen Synon

DATE:3 May 2017

PLACE OF DECISION:  Melbourne

DECISION:In relation to Mr Prit Pal the Tribunal does not have jurisdiction in this matter.

DECISION:In relation to Ms Bhawna Sharma the Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

Statement made on 03 May 2017 at 2:32pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 –Migration zone – Primary applicant not in the migration zone at time of application – Application for review can be made by sponsor only

LEGISLATION
Migration Act 1958, ss 5(1), 65, 338, 347(2)
Migration Regulations 1994, r 4.02, Schedule 2, cl 457.321

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 20 October 2016, to refuse to grant Temporary Business Entry (Class UC) 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 9 November 2016.

   Primary Review Applicant – Mr Prit Pal

3. For the following reasons, the Tribunal has no jurisdiction to review the decision in relation to the primary review applicant, Mr Prit Pal as the application was not made in accordance with the relevant legislation.

4. Section 347(2) of the Act and r.4.02(5) of the Migration 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), 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.

5. In the case of a decision described in s.338(9) and r.4.02(4)(l), an application for review may only be made by the sponsor or nominator: r.4.02(5)(k).

6. Department records confirm that the applicant departed Australia on 14 March 2016 and returned to Australia on 16 March 2016.  The visa application was lodged on 15 March 2016.

7. On this basis the Tribunal formed the preliminary view that it did not have jurisdiction in relation the primary review applicant and wrote to him, via his registered migration agent and authorised representative, on 23 December 2016 inviting comments by 6 January 2017.  No response was received.

8. On the basis of Departmental records, the Tribunal is satisfied that the primary visa applicant was outside the migration zone when his visa application was lodged on 15 March 2016. It follows that the Tribunal finds that the decision of the delegate is not an MRT-reviewable decision under s.338(2) because the primary visa applicant was not in the migration zone when the visa application was made.

9. As noted above, the decision that is the subject of the review application is a decision covered by s.338(9) and r.4.02(4)(l). Therefore the application for review could only be made by the sponsor or nominator: s.347(2)(d) and r.4.02(5)(k). In the present case, the review application was made by the primary visa applicant.

10. As the decision that is the subject of the review application is a decision covered s.338(9) and r. 4.02(4)(l) the application for review could only be made by a relevant sponsor, and not the visa applicant. In the present case, the review application was made by the review applicant himself on both his and his wife’s (the secondary review applicant’s) behalf. As such, the application for review in respect of the primary review applicant, Mr Prit Pal, is not an application properly made under s.347 and it follows that the Tribunal does not have jurisdiction in this matter.

    Secondary Review Applicant – Ms Bhawna Sharma

11. As the department’s movement records confirm that the secondary review applicant was in Australia at the time of the visa application, the Tribunal does have jurisdiction review this matter is relation to her.

12. This was communicated to the applicants via their representative on 13 April 2017 thus:

    This case has now been constituted to a Member who has determined that the primary review applicant does not have standing and therefore it has no jurisdiction in respect to his application for review. This is because he was offshore at the time he lodged the 457 application.  These matters were explained in a natural justice letter sent to the applicant via [the representative] on 23 December 2016.  No response was received to this natural justice letter.

    However the Tribunal is of the view that it does have jurisdiction in relation to the second named review applicant, Ms Bhawna Sharma.  This is because department movement records confirm she was on shore at the both the time the visa application was lodged and the primary decision made.

    Therefore the Tribunal will shortly invite Ms Bhawna Sharma to a hearing to present evidence and arguments. The issue on review in relation to Ms Bhawna Sharma will be cl.457.321 as detailed in the primary decision:

    457.321

    The applicant is a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.

13. The secondary review applicant, Ms Bhawna Sharma appeared before the Tribunal on 3 May 2017 to give evidence and present arguments.  The hearing was conducted via telephone.  The Tribunal also received oral evidence from her husband, the primary review applicant, Mr Prit Pal.

14. The applicants were represented in relation to the review by their registered migration agent.  He did not attend the hearing.

15. During the hearing, after first confirming with Ms Bhawan Sharma that she is not an applicant for a Temporary Business Entry (Class UC) Subclass 457 visa in her own right, the Tribunal explained that the only relevant issue before it is whether she is can satisfy cl.457.321. This requires that she is a member of the family unit of a person who satisfies the primary criteria and is the holder of a Subclass 457 visa. The Tribunal asked Ms Bhawan Sharma if her husband has been granted a Subclass 457 visa. She said no. The Tribunal explained that it was therefore unable to find in her favour and asked if she understood this. She responded “alright” and said it was the only option they had at the time.

16. Mr Prit Pal, her husband said that he applied for the 457 but the nomination was not approved.  His wife is his dependent.  He applied for the 457 visa offshore.  She was onshore.  He thinks they did nothing wrong.  He said the sponsor has appealed the nomination refusal and is happy to speak in his favour.

17. Based on Ms Bhawna Sharma’s evidence that her husband is not the holder of a Subclass 457 visa, and Mr Pit Pal’s evidence that his nomination was refused, it follows that Ms Bhawna Sharma cannot satisfy the requirements of cl.4547.321.

    DECISIONS

18. In relation to Mr Prit Pal the Tribunal does not have jurisdiction in this matter.

19. In relation to Ms Bhawna Sharma the Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

    Karen Synon
    Member