SJD Property Group Pty Ltd (Migration)

[2017] AATA 2448

SJD Property Group Pty Ltd (Migration) [2017] AATA 2448 (22 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  SJD Property Group Pty Ltd

VISA APPLICANTS:  Mr Lizhou Shi
Ms Fengyi Chen

CASE NUMBER:  1725342

DIBP REFERENCE(S):  BCC2016/4148406

MEMBER:Catherine Carney-Orsborn

DATE:22 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 22 November 2017 at 2:44pm

CATCHWORDS
Migration – Employer Nomination (Permanent) visa – Subclass 186 Employer Nomination Scheme – Review application not properly made – Application made by nominator organisation

LEGISLATION
Migration Act 1958, ss 5, 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 13 October 2017, to refuse to grant Employer Nomination (Permanent) visas 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 17 October 2017. 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. On 2 November 2017 the Tribunal wrote to the applicant’s representative setting out the jurisdiction issue. The Tribunal stated that it was of the view that the application for review was not a valid application as the organisation which applied for review is not the visa applicant who was the subject of the Department’s decision.  The letter invited the applicant to comment.

5. The applicant responded on 10 November 2017.  The response stated that the visa applicant was offshore at the time of the as they did not know when the Department would make a decision and this created difficulties for them.

6. The Tribunal acknowledges the above submission however finds that it affords no legal basis for finding jurisdiction.

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 visa applicant’s nominator organisation. 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.

   Catherine Carney-Orsborn
   Member