ZHANG (Migration)

[2018] AATA 3451

ZHANG (Migration) [2018] AATA 3451 (5 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr BO ZHANG

CASE NUMBER:  1816236

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 12:59pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 338, 347
Migration Regulations 1994, r 4.02

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 14 May 2018, to refuse to grant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(9) of the Act.

2. The review application was lodged with the Tribunal on 4 June 2018. 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. 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.

4. 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.

5. On 18 June 2018, the Tribunal wrote to the visa applicant through his representative, inviting them to comment by 2 July 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. Following a phone call to the Tribunal by the representative, the Tribunal agreed to extend the time for response to 16 July 2018.

6. The applicants' representative has filed a response to the Tribunal's invitation, on 16 July 2018, indicating that they wanted a further extension of time, as they were awaiting a response to a Freedom of Information Request made to the Department.  As at the time of decision, no further response has been received by the Tribunal.  The Movement Details before the Tribunal indicate that the visa applicant departed Australia on 29 April 2017, and did not return to Australia until 16 May 2017.  On this basis, the Tribunal finds that the visa applicant was outside of Australia at the time of application on 14 May 2017.

7. 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 applicant. 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.

   DECISION

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

   Bridget Cullen
   Member