Singh (Migration)

[2018] AATA 1950

Singh (Migration) [2018] AATA 1950 (3 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gulshan Singh

CASE NUMBER:  1810574

DIBP REFERENCE(S):  BCC2017/2308773 PNJ

MEMBER:Antonio Dronjic

DATE:3 May 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 03 May 2018 at 10:24am

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – Incorrect applicant – Lodgement by the nominating business – Applicant outside migration zone

LEGISLATION

Migration Act 1958, ss 5(1), 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 27 March 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(7A) of the Act.

2. The review application was lodged with the Tribunal on 15 April 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(7A), 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.

4. The review application was lodged by the nominating business and not the visa applicant. In addition, the applicant as not in Australia at the time the delegate refused the visa application on 27 March 2018 and at the time the application was lodged with the Tribunal on 15 April 2018.

5. The Tribunal formed the preliminary view that it did not have jurisdiction and wrote to the applicant on 17 April 2018 inviting submissions on this issue by 1 May 2018. On 26 April 2018, the applicant’s representative wrote to the Tribunal submitting that the nominating business can apply for review of the decision under s.338(5).

6. The Tribunal finds that the delegate’s decision is not covered by s.338(5) because it is not a criteria for the grant of the visa that the applicant be sponsored, and the visa could be granted if the applicant is in the migration zone.

7. As the decision that is the subject of the review application is a decision covered by s.338(7A), the application for review could only be made by the non-citizen who is the subject of the decision. In the present case, the review application was made by the nominating business. 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

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

   Antonio Dronjic
   Member