Zhang (Migration)

[2018] AATA 911

Zhang (Migration) [2018] AATA 911 (19 February 2018)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Le Zhang

Mr Hoaran Zhang
Ms Yulian Guo

CASE NUMBER:  1716485

DIBP REFERENCE(S):  BCC2016/2693253

MEMBER:  Kate Timbs

DATE:  19 February 2018

PLACE OF DECISION:  Sydney

DECISION:  The Tribunal does not have jurisdiction in respect

of the applications for review of Mr Le Zhang  and Ms Yulian Guo.

The Tribunal affirms the decision to refuse to grant Mr Hoaran Zhang an Employer Nomination (subclass 186) visa.

CATCHWORDS

Migration – Employer Nomination (Permanent) visa – Subclass 186 (Employer Nomination) – Primary applicant outside of the migration zone – Application refused – Second named applicant – Member of the family unit – Unable to satisfy clause 186.311

LEGISLATION
Migration Act 1958, ss 65, 338, 347, 359A, 359C,
Migration Regulations 1994 Schedule 2 cl 186.311

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 7 July 2017, to refuse to grant Employer Nomination (subclass 186) visas under section 65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 28 July 2017.

   Mr Le Zhang and Ms Guo

2. The decision to refuse to grant the visas is reviewable under section 338(2) of the Act. Under section 347(3), to apply for review, a person who is the subject of a decision that is reviewable under that section must be physically present in the migration zone. A person is in the migration zone if they are in Australian States and Territories (section 5).

3. The Department's records state that Mr Zhang and Ms Guo were not in Australia when they applied for review. The Tribunal wrote to them advising of that information and inviting them to comment. They did not provide comments and the Tribunal accepts the information in the Department's records. It finds it does not have jurisdiction to deal with their applications for review because they were not in the migration zone when they made their review applications.

   Mr Hoaran Zhang

4. The Department's records show Mr Hoaran Zhang was in the migration zone when he applied for review and the Tribunal has jurisdiction to deal with his application for review.

5. The Tribunal wrote to Mr Hoaran Zhang in accordance with section 359A. It invited him to comment on the information that Mr Le Zhang was not in the migration zone at the time of hearing and explained why that information might be a reason to affirm the decision to refuse to grant him a visa. He did not provide comments on the information and the Tribunal considered his application for review without inviting him to a hearing (section 359C).

6. To be granted the visa, Mr Hoaran Zhang must meet either the primary or secondary criteria in Part 186 of Schedule 2 to the Migration Regulations. Mr Hoaran Zhang applied for the visa as a member of Mr Le Zhang's family unit and there is no evidence that he meets the primary criteria for the grant of the visa.

7. To satisfy the secondary criterion in clause 186.311, he must be "a member of the family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa".

8. The delegate has refused to grant a visa to Mr Le Zhang and the Tribunal has no jurisdiction to review that decision. It follows that Mr Hoaran Zhang does not satisfy clause 186.311 because Mr Le Zhang has not been granted a visa.

9. The Tribunal will affirm the decision under review for that reason.

DECISION

The Tribunal does not have jurisdiction in respect of the applications for review of Mr Le Zhang and Ms Yulian Guo.

The Tribunal affirms the decision to refuse to grant Mr Hoaran Zhang an Employer Nomination (subclass 186) visa.

Kate Timbs

Member