Wei (Migration)

[2017] AATA 1695

Wei (Migration) [2017] AATA 1695 (8 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Shanshan Wei
Mr Qiwei Li

CASE NUMBER:  1710978

DIBP REFERENCE(S):  BCC2016/3040682

MEMBER:Alison Mercer

DATE:8 August 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 08 August 2017 at 2:54pm

CATCHWORDS

Migration – Employer Nomination (Permanent) visa – Not in migration zone at time of application

LEGISLATION

Migration Act 1958, ss 5(1), 65, 338(2), 347(2)

Migration Regulations 1994, Schedule 2, 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 3 May 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(2) of the Act.

2. The review application was lodged with the Tribunal on 23 May 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(2), an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s.347(2)(a) and (3). ‘Migration zone’ is defined in s.5(1) of the Act and generally speaking means the Australian States and Territories.

4. On 11 July 2017, the Tribunal wrote to the applicants via their registered migration agent to invite them to comment on the issue of whether their review application had been validly lodged. Specifically, they were advised that a preliminary view had been formed that it had not been, as it was a requirement that the applicants were in the migration zone (Australia) at the time that the review application was lodged, and it appeared that the first named applicant was not in Australia when the review application was lodged on 23 May 2017.  The applicants were invited to provide any comments on this issue by 25 July 2017, and were advised that any comments received would be taken into consideration by a Tribunal Member, who would ultimately determine whether the review application had been validly lodged.

5. The Tribunal did not received any comments from the applicants or their agent by the due date, and has received no further communication from them to the date of this decision.

6. The Department’s movement records show that the first named applicant was outside Australia on 23 May 2017. Accordingly, the Tribunal finds that she was not in the migration zone at the relevant time. 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

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

   Alison Mercer
   Member