Zhao (Migration)

[2019] AATA 270

Zhao (Migration) [2019] AATA 270 (7 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Jing Zhao
Mr Liang Chen
Mr Haoyu Chen

CASE NUMBER:  1823586

DIBP REFERENCE(S):  BCC2017/1057812

MEMBER:Peter Emmerton

DATE:7 February 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal does not have jurisdiction in this matter in regards to Ms Jing Zhao nor Mr Haoyu Chen.

The Tribunal affirms the decision not to grant the   applicant, Mr Liang Chen, Regional Employer   Nomination (Permanent) (Class RN) visa.

Statement made on 07 February 2019 at 12:02pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) visas – Subclass 187 Regional Sponsored Migration Scheme – primary applicant not in the migration zone at application for review – no jurisdiction – member of the family unit – secondary applicant affirmed       

LEGISLATION

Migration Act 1958, ss 5(1), 338, 347, 359
Migration Regulations 1994, Schedule 2 cl 187.311

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 30 July 2018, to refuse to grant Regional Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(2) of the Act.

2. The review application was lodged with the Tribunal on 15 August 2018. For the following reasons, the Tribunal has no jurisdiction to review the decision in regards to the primary applicant, Ms Jing Zhao nor the secondary applicant Mr Haoyu Chen, as the application was not made in accordance with the relevant legislation.

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

4. Neither Ms Jing Zhao nor Mr Haoyu Chen were physically present in the migration zone at the time of application for review received by the Tribunal on 15 August 2018. A natural Justice letter was sent on 16 August 2018 advising, ‘In order to have made valid applications, Ms Jing Zhao and Master Haoyu Chen must have been in Australia at the time the applications were lodged with us on 15 August 2018. It appears that Ms Jing Zhao and Master Haoyu Chen were not in Australia on that date, and I am therefore of the view that the applications in relation to these applicants are not valid applications. However, this is a matter which must be determined by a Member.’

5. The Tribunal acknowledges the response received explaining the reasons for the primary visa applicant, Ms Jing Zhao, being off-shore in China, at the time of the review application due to the ill health of Mr Haoyu Chen, the primary applicant’s son. Mr Haoyu Chen, one of the secondary visa applicants was also off-shore and living in China. The Tribunal also notes the provision of the airline receipt indicating the return to Australia of the primary visa applicant on 31 August.

6. On 7 November 2018, the Tribunal sent a letter to Mr Liang Chen, under Section 359(A), in which it stated, ‘In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are:

   Following an initial examination of the case, the Tribunal’s preliminary view is that it
   may not have jurisdiction to review the decision to refuse to grant the primary visa
   applicant Jing Zhao, a Subclass 187 visa (the Decision).

   This information is relevant to the review because if the Tribunal determines it has no
   jurisdiction to review the Decision in relation to the primary visa applicant, it will remain
   the case that the primary visa applicant does not hold a Subclass 187 visa. If the
   primary visa applicant does not hold a Subclass 187 visa, it will not be possible for you
   to meet cl.187.311 of the Migration Regulations (the Regulations) which requires that a
   secondary visa applicant:

   (a) is a member of the family unit of a person (the primary applicant) who holds a
   Subclass 187 visa granted on the basis of satisfying the primary criteria for the
   grant of the visa; and

   (b) made a combined application with the primary applicant.
   If we rely on this information in making our decision, we may find you are not a
   member of the family unit of a person who holds a Subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa, and cl.187.311 of the Regulations is not satisfied. In those circumstances, the decision to refuse to grant you a Subclass 187 visa would be affirmed.

   You are invited to give comments on or respond to the above information in writing.’

7. A written response was received on 20 November 2018.

8. Following an enquiry on 20 November 2018, from the applicant’s representative, seeking advice from the Tribunal, the Tribunal offered an extension of an additional 7 days during which time the applicants could submit any additional supporting material and the representative could provide advice to the applicants.

9. On 27 December 2018 a request for a Hearing postponement was received and the Tribunal agreed on 28 December 2018 to reschedule the Hearing for 14 January 2019.

10. Another request for a Hearing postponement was received on 7 January and the Tribunal agreed on 9 January 2019 to hold the Hearing on 7 February 2019.

11. The Department’s movement records show that Ms Jing Zhao and Mr Haoyu Chen were not in Australia at the time the applications for review were lodged with the Tribunal on 15 August 2018. The Tribunal finds that the applicants were not in the migration zone at the relevant time. As such, the application for review is not an application properly made under s.347 and it follows that the Tribunal does not have jurisdiction in relation to Ms Jing Zhao nor Mr Haoyu Chen.

    DECISION

12. The Tribunal does not have jurisdiction in this matter for Ms Jing Zhao nor Mr Haoyu Chen.

13. The Tribunal finds that Mr Liang Chen is not a member of the family unit of a person (the primary applicant) who holds a subclass 187 visa.

14. Therefore, cl.187.311 is not met.

15. Mr Chen made no claim to have satisfied the primary criteria.

16. The Tribunal affirms the decision not to grant the applicant, Mr Liang Chen, Regional Employer Nomination (Permanent) (Class RN) visa.

    Peter Emmerton
    Member