Wang (Migration)

[2017] AATA 1698

Wang (Migration) [2017] AATA 1698 (25 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hongfei Wang
Mrs Wujing Lin

CASE NUMBER:  1711542

DIBP REFERENCE(S):  BCC2016/3170276

MEMBER:Christopher Smolicz

DATE:25 July 2017

PLACE OF DECISION:  Adelaide

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

Statement made on 25 July 2017 at 2:58pm

CATCHWORDS

Migration – Employer Nomination scheme – Subclass 186 – Applicants not in migration zone

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29

Migration Act 1958, ss 65, 338, 347, 411, 412

Migration Regulations 1994, Schedule 2, r 4.02(4)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 31 May 2017 for review of decision of a delegate of the Minister for Immigration refusing the first named applicant’s subclass 186 visa application because the nomination was not approved.

2. The Subclass 186 visa is part of the Employer Nomination scheme (ENS). The ENS enables employers to sponsor highly skilled workers to fill skilled vacancies in their business. Employers can employ skilled workers from overseas, or temporary residents who are living and working in Australia.

3. This scheme involves two stages:

   · approval of a nominated position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations) or pursuant to a labour agreement; and

   ·     grant of a permanent visa (Subclass 186) on the grounds that the visa applicant is the subject of either an approved temporary residence transition nomination, an approved direct entry nomination or a nomination made in accordance with a labour agreement.

4. The first named applicant applied for the visa on 23 September 2016. At the time he was the holder of a subclass 457 visa which is valid until 5 September 2017. The first and second named applicants married in Australia on 29 December 2016.

5. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

6. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal.

7. The decision to refuse the visa applications is reviewable under s.338(2) of the Act, s.347(3) requires that an applicant must be in the migration zone at the time that the primary decision is made and the review application is lodged.

8. The Tribunal has had regard to the Department’s movement records and finds that at the time the review application was lodged with the Tribunal (31 May 2017) the applicants were not in the migration zone (Australia).

9. On 31 May 2017 the Tribunal wrote to the applicants via their agent to invite them to comment on its preliminary view that the review application was not valid because the applicants were not in Australia at the time the application was lodged with the Tribunal.

10. On 2 June 2017 the applicants’ sponsoring employer (Cindy Wang for the TE Wang Family Trust) responded to the Tribunal’s letter and advised that their migration agent was instructed to lodge reviews in relation to the nomination refusal (file 1706785) and visa refusals together. The nomination refusal was submitted on 1 April 2017 however the visa applicants were required to return to China due to health issues of a family member. The Tribunal was subsequently provided with documents regarding the death of the first named applicant’s grandfather in China. It was submitted that the review applicants were not aware the application was not received by the Tribunal.

    Findings

11. The Tribunal finds that a decision to refuse a Subclass 186 visa is a reviewable decision under Part 5 of the Act:

    ·     if the application was made in the migration zone;[1] or

    ·     if the application was made outside the migration zone but the applicant was present in the migration zone when the primary decision was made.[2]

    [1] s.338(2) of the Migration Act 1958 (the Act).

    [2] s.338(7A), s.347(3A).

12. In both cases, it is the visa applicant who has standing to apply for review,[3] and the applicant must be inside the migration zone at the time of lodging the review application.[4]

    [3] s.347(2)(a).

    [4] s.347(3) and (3A).

13. The Tribunal has considered the submissions and the Department’s records and finds that applicants were not in the migration zone when they applied to the Tribunal to review the Department’s decision to refuse to grant the subclass 186 visa.

14. As there is no reviewable decision it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

    DECISION

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

    Christopher Smolicz
    Member