Phan (Migration)

[2020] AATA 2768

Phan (Migration) [2020] AATA 2768 (1 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Duc Tien Phan

CASE NUMBER:  1923152

DIBP REFERENCE(S):  BCC2019/1666638

MEMBER:Alison Mercer

DATE:1 May 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 01 May 2020 at 12:47pm

CATCHWORDS
MIGRATION – nomination – subclass 482 visa – application for review lodged by applicant not nominator – lodged out of time – no response to tribunal communication – no jurisdiction

LEGISLATION

Migration Act 1958, ss 338(9), 347(2)

Migration Regulations 1994, Schedule 2, rr 2.72, 4.02(5), 4.02(4)(e), 4.02(5)(c)

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 30 July 2019, to refuse a nomination made under r.2.72 of the Migration Regulations (the Regulations) by TN and AMF Pty Ltd under 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 20 August 2019 by Mr Duc Tien Phan, the person nominated for a subclass 482 visa by TN and AMF Pty Ltd. 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) and r.4.02(5) of the Migration Regulations 1994 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) and r.4.02(4)(e), an application for review may only be made by the person who made the nomination: r.4.02(5)(c).

4. On 21 November 2019, the Tribunal wrote to Mr Phan to advise that the Tribunal’s preliminary view was that it had no jurisdiction to review the nomination refusal decision, as the wrong person had applied for review. The Tribunal noted that the relevant provisions of the Act and Regulations specified that the person with standing to apply for review of a nomination refusal decision was the person (including a company) who made the nomination application, and Mr Phan was not such a person, as he was the visa applicant and nominee. He was invited to provide comments or a response to this information, and advised that any comments or response would be referred to a Tribunal Member for consideration before a final decision was made on whether the Tribunal had jurisdiction to review the refusal decision in this case.

5. The Tribunal did not receive any response from Mr Phan by the due date (5 December 2019) and has received no further communication from him to date. The Tribunal notes, however, that a person representing TN and AMF Pty Ltd contacted the Tribunal by email on 28 August 2019 to advise that the wrong person had been listed in the review application form and requesting that a director of TN and AMF Pty Ltd, Mr Tuyet Nguyen, be substituted for Mr Duc Tien Phan. It appears that no response was made by the Tribunal to this request prior to the Tribunal sending the natural justice letter dated 21 November 2019.

6. As the decision that is the subject of the review application is a decision covered s.338(9) and r.4.02(4)(e), the application for review could only be made by the nominator, TN and AMF Pty Ltd. In the present case, the review application was made Mr Duc Tien Phan, the person nominated by TN and AMF Pty Ltd.

7. The Tribunal acknowledges that an email was sent on 28 August 2019 by a representative of TN and AMF Pty Ltd attempting to rectify this by requesting that a director of TN and AMF Pty Ltd be substituted for Mr Phan in the review application form.

8. However, the Tribunal notes that the time frame for lodgement of a valid review application for the above nomination refusal decision is 21 days from the date that the nominator is notified of the refusal decision. As the Department sent the nomination refusal to the nominator by email, the nominator is taken to have been notified on that date (30 July 2019). The 21 day time frame to lodge a valid application for review therefore ended on 21 August 2019. The request to substitute Mr Nguyen for Mr Phan in the review application was not received by the Tribunal until 28 August 2019.

9. 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

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

    Alison Mercer
    Member