Rahman (Migration)

[2019] AATA 392

Rahman (Migration) [2019] AATA 392 (14 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Atiqur Rahman
Mrs Shathy Begum
Ms Rukayat Rahman Sara

CASE NUMBER:  1835201

DIBP REFERENCE(S):  BCC2018/959988

MEMBER:Katie Malyon

DATE:14 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 14 February 2019 at 10:53 am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – incorrect applicant – applicants not in Australia – visa applicants applied for review – no jurisdiction

LEGISLATION

Migration Act 1958, ss 5(1), 65, 338, 347
Migration Regulations 1994, r 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision made by a delegate of the Minister for Immigration, dated 9 November 2018, to refuse to grant the applicants Temporary Business Entry (Class UC) Subclass 457 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 30 November 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 and r.4.02(5) of the Migration Regulations 1994 (the 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) of the Act and r.4.02(4)(l) of the Regulations, an application for review may only be made by ‘the person who applied to become the sponsor or who nominated the non-citizen’: r.4.02(5)(k) of the Regulations.

4. The information in the Department’s file indicates that the applicants were not in Australia at the time they lodged their Subclass 457 visa applications and that the first named review applicant, Bangladeshi national Mr Atiqur Rahman, was nominated to fill the position of Chef with his prospective employer and sponsor SJ Café and Restaurant Pty Ltd (the Company).  The applicants’ representative lodged a review application with the Tribunal indicating that the applicants, not the Company, were applying for review of the delegate’s decision to refuse their Subclass 457 visa applications.

5. The Tribunal formed a preliminary view that the delegate’s decision is not reviewable because the application for review was not made by the person who applied to become the sponsor or who nominated the applicants, that is, the Company.  Accordingly, the Tribunal wrote to the applicants through their representative on 18 January 2019 inviting their comments on the validity of the application for review.  No response was received to the Tribunal’s letter. 

6. As the decision that is the subject of the review application is a decision covered by s.338(9) of the Act and r.4.02(4)(l) of the Regulations, the application for review could only be made by the person who applied to become the sponsor or who nominated the applicants: r.4.02(5)(k) of the Regulations. In the present case, the review application was made by the applicants, not the Company. As such, the application for review is not an application properly made under s.347 of the Act and, accordingly, it follows that the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Katie Malyon

   
   Member