Parvesh Kumar (Migration)

[2019] AATA 3475

Parvesh Kumar (Migration) [2019] AATA 3475 (12 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Parvesh Kumar

CASE NUMBER:  1838085

DIBP REFERENCE(S):  BCC2017/4089237

MEMBER:Wendy Banfield

DATE:12 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 12 March 2019 at 9:15am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – applicant not in the migration zone at time of review application – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 338, 347

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 7 December 2018, to refuse to grant a Regional Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(2) of the Act.

2. The review application was lodged with the Tribunal on 28 December 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) 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 the case of a decision described in s.338(2), an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s.347(2)(a) and (3). ‘Migration zone’ is defined in s.5(1) of the Act and generally speaking means the Australian States and Territories.

4. On 10 January 2019 the applicant was invited to comment on the validity of the application for review. He was asked to provide a response by 24 January 2019, however, no response was received.

5. The Department’s movement records show that the applicant had left Australia on 17 February 2016 and the application for review was made while the applicant was in India. The Tribunal finds that the applicant was not in the migration zone at the relevant time. 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

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

   Wendy Banfield
   Member