Tran (Migration)

[2018] AATA 1811

Tran (Migration) [2018] AATA 1811 (30 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tien Ngoc Tran

CASE NUMBER:  1804781

DIBP REFERENCE(S):  BCC2017/3572304

MEMBER:Hugh Sanderson

DATE:30 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 30 April 2018 at 1:44pm

CATCHWORDS

Migration – Employer nomination – Incorrect applicant – Subsequent application out of time

LEGISLATION

Migration Act 1958, ss 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 of a delegate of the Minister for Immigration, dated 2 February 2018, refusing a nomination application 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 22 February 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) 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)(d), an application for review may only be made by the approved sponsor who made the nomination: r.4.02(5)(c).

4. The Tribunal wrote to the applicant on 12 April 2018 noting that the person entitled to apply for a review of the decision to refuse the nomination application was Piazza Trevi Pty Ltd ATF Piazza Trevi Trust. As the applicant did not appear to be the sponsor or nominator, the review application did not appear to be a valid application. It was noted that a subsequent application was filed on 27 February 2018, however as the last day to file a review application was 23 February 2018 this application had been filed out of time. The applicant was invited to comment on or respond to this information by 26 April 2018.  The applicant did not comment on or respond to this information.

5. As the decision that is the subject of the review application is a decision covered s.338(9) and r.4.02(4)(d), the application for review could only be made by the sponsor. In the present case, the review application was made by the visa applicant. 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. Further, the application that was filed on 27 February 2018 was not filed within the time limits for filing an application for a review of a decision of the Department. For this reason, the Tribunal does not have jurisdiction to consider that application.

   DECISION

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

   Hugh Sanderson
   Member