ZHANG (Migration)

[2018] AATA 3452

ZHANG (Migration) [2018] AATA 3452 (5 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bo ZHANG

CASE NUMBER:  1816254

DIBP REFERENCE(S):  BCC2017/1718933

MEMBER:Bridget Cullen

DATE:5 September 2018

PLACE OF DECISION:  Brisbane

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

STATEMENT MADE ON 05 SEPTEMBER 2018 AT 1:31PM

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – incorrect applicant – duplicate review application – applicant not in the migration zone at time of review application – no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 5(1), 65, 338, 347, 411, 412
Migration Regulations 1994, r 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 4 June 2018 for review of a decision of a delegate of the Minister for Immigration, dated 14 May 2018, to refuse to grant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act). For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

2. 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. They include decisions to refuse visas of various kinds, but the evidence before the Tribunal indicates that this application is a duplicate application, seeking to review the same decision as that in Case No. 1816236, involving the same visa applicant.

3. The application for review in Case No. 1816236 was dismissed by the Tribunal for lack of jurisdiction, for the reasons set out in that Decision Record:

   Subsection 347(2) and subregulation 4.02(5) of the Migration Regulations 1994 ('the Regulations') specify who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. Paragraph 4.02(4)(l) provides, in effect, that a decision to refuse to grant a Subclass 457 visa to a non-citizen is prescribed for s.338(9) if the non-citizen is outside Australia at the time of application and the person was sponsored or nominated by a company that operates in the migration zone. It is then provided in paragraph 4.02(5)(k) that in that case the application for review may only be made by the sponsor or nominator.

   In this instance, the visa application was lodged on 14 May 2017 whilst the visa applicant was offshore. Accordingly the sponsor had the right to apply for review. However, the visa applicant purported to apply for review.

   ***

   As the decision that is the subject of the application for review is a decision covered subsection 338(9) and subregulation 4.02(4)(l), it could only be made by the sponsor. In the present case, the application for review was made by the visa applicants. As such, the application for review is not an application properly made under section 347 and it follows that the Tribunal does not have jurisdiction in this matter.

4. On 8 June 2018, the Tribunal wrote to the visa applicant, inviting him to comment by 22 June 2018 on the validity of the application for review, noting that the person entitled to apply for the review was the sponsor or nominator whose details were included in the visa application.

5. On 20 June 2018, an email was sent to the Tribunal on the visa applicant’s behalf, indicating that “Due to an administrative error, we typed the applicant details in the visa review application instead sponsors’ details. It is appreciated that if we could amend the application and corresponds details.”

6. The last day for lodgment of an application to review by the sponsor or nominator was on 4 June 2018.  The request to amend made on 20 June 2018 falls outside the time provided to apply for review. 

7. The Tribunal does not have discretion to rectify this error in circumstances where the request to amend was made outside the time for lodgment of the review, or to disregard the fact that the visa applicant was offshore at the time of application.

8. As this application is a repeat application of that made in Case No. 1816236, it follows that the Tribunal has no jurisdiction to consider this application, either.

   DECISION

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

   Bridget Cullen
   Member