Yang (Migration)

[2024] AATA 659

Yang (Migration) [2024] AATA 659 (12 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Chih Yang
Mrs Wan-Chen Chang

CASE NUMBER:  2319093

HOME AFFAIRS REFERENCE(S):          BCC2023/3386768

MEMBER:Katie Malyon

DATE:12 February 2024

PLACE OF DECISION:  Sydney

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

Statement made on 12 February 2024 at 4:51 pm

CATCHWORDS

MIGRATION – Skilled Employer Sponsored Regional (Provisional) (Class PE) visas – application for review was not valid – letter from the Department is not a decision to cancel or refuse a visa – no decision for the Tribunal to review – no jurisdiction

LEGISLATION

Migration Act 1958, s 65, Schedule 2

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a purported decision claimed to have been made by a delegate of the Minister for Home Affairs on 24 October 2023 to refuse to grant Skilled Employer Sponsored Regional (Provisional) (Class PE) visas under s 65 of the Migration Act 1958 (Cth) (the Act).  

2. The review application was lodged with the Tribunal on 23 November 2023.  For the following reasons, the Tribunal has no jurisdiction in this matter.

3. The Tribunal wrote to the first named applicant, Taiwanese national Mr Chih Yang, on 27 November 2023 inviting him to comment on the validity of the applicants’ review application.  In its natural justice letter, the Tribunal stated that, in its view, the application for review was not valid.  It noted Mr Yang had submitted a copy of a letter from the Department dated 24 October 2023 in which the applicants are advised that their Skilled Employer Sponsored Regional (Provisional) Subclass 494 visa applications were invalid.  The Tribunal also noted that the letter from the Department is not a decision to cancel or refuse a visa.  As such, there is no decision for the Tribunal to review.  The applicants were invited to comment in writing by 11 December 2023 on whether they had made a valid application for review. 

4. In response to the Tribunal’s invitation to comment on the validity of their review application, it received a request on 11 December 2023 from Mr Yang for an extension of 14 days to respond to the Tribunal’s letter.  An extension of time was granted to 9 January 2024.  Subsequently, on 9 January 2024 a further request for another 14 days was received on the basis that Mr Yang had received no response from the sponsor/nominator or the migration agent assisting the business with its employer nomination application.  The Tribunal agreed to a further extension of time until 23 January 2024. 

5. Mr Yang responded to the Tribunal’s invitation letter on 24 January 2024 stating that he had tried to contact the sponsor to find out why the application was invalid but has been unsuccessful in doing so.  He added that he believes the visa application ‘should be valid’ and requested the Tribunal to contact the Department to ‘find out the nomination application detail’. 

6. Following constitution of the matter to the Member on 2 February 2024, information in the Department’s visa application file and the Tribunal’s file was reviewed.  Based on its review of available information, the Tribunal finds that at the time the review application was lodged, the Department had not made a decision to refuse or cancel a visa application made by the applicants.  This is clearly set out in the delegate’s decision (extracted below), a copy of which was provided to the Tribunal by the applicants:

   Your application for a visa is invalid because it did not meet ITEM 1242(4) in Schedule 1 of the Migration Regulations 1994.

   Under subitem 1242(4), an applicant seeking to satisfy the primary criteria must meet the
   following requirements: t

   ● the application must be for a SESR visa in the stream identified in the nomination in relation to a proposed occupation;

   ● the visa application must identify the related nomination, and the nomination must be:

   ● already approved by the Department and has not ceased; or
   ● lodged with the Department but no decision has yet been made by the Department;

   ● the person who made the nomination must not be the subject of a sponsorship bar under section 140M of the Act.

   Invalid applications cannot be considered. Your application has not been accepted and will not be assessed against the visa criteria for grant or refusal.

   Migration law may be subject to change at any time and the law that will be used to assess a
   visa application is the law in place at the time all application validity requirements are met.

   Review rights

   There is no right of merits review of the assessment that an application is invalid.

7. It is not the Tribunal’s role to provide immigration advice to the applicants. In the circumstances, the Tribunal strongly recommends that the applicants seek competent professional advice from an immigration lawyer or registered migration agent in relation to the regulatory requirements, in particular, the requirements in Schedule 1 of the Regulations lodging a valid visa application. As set out in the Note to Schedule 1, “an application that is not made as set out in this Schedule is not valid and will not be considered: ss 45, 46 and 47” (of the Act). The delegate formed the view in this case that the applicants’ visa application was invalid.

8. In the circumstances of this case, there is no decision for the Tribunal to review.  Therefore, it follows that the application for review is not made in accordance with the relevant legislation and, accordingly, the Tribunal has no jurisdiction in this matter. 

   DECISION

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

   Katie Malyon

   
   Member