Zhang (Migration)

[2017] AATA 1633

Zhang (Migration) [2017] AATA 1633 (11 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yi Zhang
Ms Junying Gu
Ms Shixuan Zhang

CASE NUMBER:  1716481

DIBP REFERENCE(S):  BCC2016/1064432

MEMBER:Katie Malyon

DATE:11 September 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal does not have jurisdiction in this matter in relation to first named applicant.

The Tribunal affirms the decision not to grant the second named applicant and the third named applicant Employer Nomination (Permanent) Subclass 186 visas.

Statement made on 11 September 2017 at 9:09 am

CATCHWORDS

Migration – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 Employer Nomination Scheme – Primary applicant left migration zone – Secondary applicants remained in migration zone – Family members of a Subclass 186 visa holder – No entitlement to a hearing

LEGISLATION

Migration Act 1958, ss 5(1), 65, 338, 347, 359A, 360, 363A

Migration Regulation 1994, Schedule 1, Schedule 2, cl 186.233, cl 186.311

CASES

Hasran v MIAC [2010] FCAFC 40
Kaur v MIBP [2017] FCCA 564

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision by a delegate of the Minister for Immigration, dated 14 July 2017, to refuse to grant the visa applicants an Employer Nomination (Permanent) Subclass 186 visa under s.65 of the Migration Act 1958 (the Act). The delegated refused the application because the primary visa applicant, Mr Yi Zhang, did not meet criteria for grant of the visa. The delegate’s decision is reviewable under s.338(2) of the Act.

2. The review application was lodged with the Tribunal on 28 July 2017. 

   Jurisdiction in relation to the first named applicant

3. For the following reasons, the Tribunal has no jurisdiction to review the decision in relation to the first named review applicant as the application was not made in accordance with the relevant legislation.

4. 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) of the Act, an application for review may only be made by the non-citizen who is the subject of the decision and who is physically present in the migration zone when the application for review is made: s.347(2)(a) and s.347(3) of the Act (emphasis added). The term ‘migration zone’ is defined in s.5(1) of the Act and, generally speaking, means Australia’s States and Territories.

5. Departmental records indicate that Mr Zhang was not in Australia on 28 July 2017 when the application for review was made.  The Tribunal formed a preliminary view that the application for review made by Mr Zhang was not a valid application in relation to him since he was not in Australia when the application was lodged.  On 3 August 2017, the Tribunal wrote to Mr Zhang inviting comments on the validity of his application for review.  No response was received.

6. The Department’s movement records show Mr Zhang left Australia on 14 July 2017 and he was not in Australia on 28 July 2017 when his application for review was lodged with the Tribunal. 

7. In the circumstances, the Tribunal finds that Mr Zhang was not in the migration zone at the relevant time. As such, the application for review made by Mr Zhang is not an application properly made under s.347 of the Act and it follows that the Tribunal does not have jurisdiction in this matter in relation to Mr Zhang.

   Jurisdiction and consideration of evidence in relation to the second and third named applicants

8. When the delegate refused Mr Zhang’s Subclass 186 visa application the delegate also refused the Subclass 186 visa applications by Mr Zhang’s wife, Ms Junying Gu, and his daughter, Ms Shixuan Zhang.  Their applications were refused by the delegate because they were not members of the family unit of a person who holds a Subclass 186 visa.  When Mr Zhang made his application for review to the Tribunal, he included his wife and his daughter in his review application. 

9. Although the Tribunal has found that it has no jurisdiction in relation to review the delegate’s refusal of Mr Zhang’s Subclass 186 visa because he was not in Australia at the time he made his application for review, Departmental records indicate that both his wife and his daughter were in Australia at that time.  Accordingly, the Tribunal has jurisdiction in relation their review application.

10. On 25 August 2017, the Tribunal wrote to the applicants pursuant to s.359A of the Act and invited Ms Gu and Ms Zhang to provide their comments or response to certain information which the Tribunal considers would, subject to their comments or response, be the reason, or part of the reason, for affirming the decision under review in relation to them.

11. The Tribunal noted that neither Ms Gu nor Ms Zhang applied for a Subclass 186 visa on the basis of meeting primary criteria for the visa and, further, neither of them were named in a declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 of the Regulations at the time of lodging the visa application.  In its letter, the Tribunal stated that this information is relevant because, if the Tribunal finds that Ms Gu and Ms Zhang are not family members of a person who holds a Subclass 186 visa, the Tribunal would find that each of them do not meet cl.186.311 of Schedule 2 of the Regulations.  The Tribunal also noted that the information is relevant because, if the Tribunal finds that Ms Gu and Ms Zhang were not named in a declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 of the Regulations, the Tribunal will find that they do not meet 186.233 of Schedule 2 of the Regulations. 

12. The Tribunal noted that if it finds that Ms Gu and Ms Zhang do not meet the requirements for grant of a Subclass 186 visa it will affirm the decision of the Department to refuse their applications for the visa.

13. The invitation was sent to Ms Gu and Ms Zhang by letter dispatched to the email address provided by Mr Zhang in the application for review lodged with the Tribunal. The Tribunal advised that if the information was not provided in writing by 8 September 2017, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

14. Ms Gu and Ms Zhang have not provided the information within the prescribed period and no extension has been requested, or granted. In the circumstances, s.359C of the Act applies and, pursuant to s.360(3) of the Act the review applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that, if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40; Kaur v MIBP [2017] FCCA 564. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information.

    Consideration of evidence

15. Based on documentation in the Department’s file, Ms Gu and Ms Zhang were included as secondary applicants on the basis of being family members in respect of Mr Zhang’s Subclass 186 visa application.  Clause 186.311 of Schedule 2 to the Regulations requires that, as secondary applicants, to be granted the visa Ms Gu and Ms Zhang must be are members of the family unit of a person who holds a Subclass 186 visa.  As noted above, the Tribunal has no jurisdiction to consider the Department’s refusal of Mr Zhang’s Subclass 186 visa application as he was not in Australia at the relevant time.  Accordingly, the Tribunal finds that Ms Gu and Ms Zhang are not members of the family unit of a person who holds a Subclass 186 visa.  Therefore, the Tribunal finds that Ms Gu and Ms Zhang do not meet cl.186.311 of Schedule 2 of the Regulations.

16. Having reviewed documentation in the Department’s file it is evident that neither Ms Gu nor Ms Zhang were named in a declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 to the Regulations at the time of lodging their Subclass 186 visa application with the Department.  Accordingly, the Tribunal finds that they do not meet cl.186.233 of Schedule 2 to the Regulations. 

17. No material has been submitted by either Ms Gu or Ms Zhang, or which is otherwise available to the Tribunal, that would support a conclusion that either of them meets the requirements of cl.186.311 or cl.186.233 of Schedule 2 to the Regulations. 

    DECISION

18. The Tribunal does not have jurisdiction in this matter in relation to first named applicant.

19. The Tribunal affirms the decision not to grant the second named applicant and the third named applicant Employer Nomination (Permanent) Subclass 186 visas.

    Katie Malyon

    
    Member