UPPAL (Migration)

[2017] AATA 3027

UPPAL (Migration) [2017] AATA 3027 (14 December 2017)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs SANDEEP KAUR UPPAL

CASE NUMBER:  1700313

DIBP REFERENCE(S):  BCC2015/3732227

MEMBER:Alan McMurran

DATE OF DECISION:  14 December 2017

DATE CORRIGENDUM

SIGNED:8 February 2018

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

The date ‘13 December 2017’ on page 1 of the Decision Record should be replaced with ‘14 December 2017’.

Alan McMurran
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs SANDEEP KAUR UPPAL

CASE NUMBER:  1700313

DIBP REFERENCE(S):  BCC2015/3732227

MEMBER:Alan McMurran

DATE:13 December 2017

PLACE OF DECISION:  Sydney

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

Statement made on 14 December 2017 at 4:16pm

CATCHWORDS

Migration – No jurisdiction – Regional Employer Nomination (Permanent) visa – Subclass 187 – Regional Sponsored Migration Scheme – Not present in migration zone – Did not make own application – Spouse applied on her behalf – Invalid application

LEGISLATION

Migration Act 1958, ss 5(1), 65, 338(7A), 347(2)(a) and (3A)

Migration Regulations 1994, Schedule 2

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 16 December 2016, 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 6 January 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. The initial application for the visa was made to the Department on 7 December 2015. The Department refused the decision and notified the applicant of the refusal on 16 December 2016 stating reasons, and noting that the applicant had departed Australia on 5 January 2016.

5. On 6 January 2017, an application was made to the Tribunal by the applicant’s spouse, Hayer Prabhjot Singh to review that refusal decision.

6. The Tribunal acknowledged receipt of the application on 10 January 2017 including a letter which set out statements that: “Please note that the validity of your application has not been assessed. We can only review a decision if a valid application for review has been made. You will be advised if it appears that your application may not be valid.” Attached to the letter was standard information for migration review applicants which also included a statement that: “we can only review a decision if a valid application has been made. We will advise you if it appears that your application is not valid”.

7. On 11 January 2017, the Tribunal received a letter from Prabhjot Singh Hayer which stated that the applicant “went back to India on 5th January 2016”. The letter also states that “I decided to appeal on her behalf being the main applicant. And I applied appeal on 6th January 2017 by online application.” There is no evidence before the Tribunal that the applicant knew or was aware of the application lodged “on her behalf”.

8. On 26 October 2017, the Tribunal received a Withdrawal of Application form signed by Mr. Singh Hayer. The form was sent by email to the Tribunal’s Registry mailbox at 9:37 AM on 30 October 2017. On 8 November 2017, the Tribunal wrote to the applicant by email to the same electronic address from which it had received the form. The Tribunal’s letter states that Sandeep Uppal is the person who is entitled to apply to the Tribunal, being the person whose particulars were included in the Visa application. The letter states that as “you are not such persons” the Tribunal formed a preliminary view that the application was not a valid application. In light of the letter received from Mr Singh Hayer, the Tribunal is satisfied in the circumstances that the applicant did not make the application.

9. The Tribunal’s letter further goes on to note that at the time of the application, the applicant was not present in the jurisdiction, having left Australia on 5 January 2017. So much is also confirmed in the letter from Mr Singh Hayer who lodged the application online and when offshore. The Department’s Movements Details show that the applicant, Sandeep Kaur, departed Australia on 5 January 2016 en route to India. As a consequence, the Tribunal finds the applicant was not present in the migration zone at the time of lodgement of the application on 6 January 2016, and when lodged online.

10. As set out above, s.347 of the Act states that an application for review may only be made by a non-citizen who is the subject of the decision and who is physically present in the migration zone when the application for review is made. The Tribunal finds that the applicant was not in the migration zone at the relevant time.

11. As such, and having regard to the above facts and circumstances, the application for review is not properly made under s.347 and it follows that the Tribunal does not have jurisdiction in this matter.

    DECISION

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

    Alan McMurran
    Member