ZHAO (Migration)

[2018] AATA 3840

ZHAO (Migration) [2018] AATA 3840 (3 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Yuan ZHAO
Mr Jianing WU
Master Antonio WU
Master Xiaotong WU

CASE NUMBER:  1822465

DIBP REFERENCE(S):  BCC2017/2330257 PNJ

MEMBER:Jennifer Cripps Watts

DATE:3 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 03 October 2018 at 8:39am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) visas – Subclass 186 Employer Nomination Scheme – applicant not in the migration zone at time of review application – no jurisdiction

LEGISLATION

Migration Act 1958, ss 5(1),65, 338, 347

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 23 July 2018, to refuse to grant 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 3 August 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. 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. The Tribunal wrote to the applicant on 9 August 2018 inviting her to comment on the validity of the applications as it appeared she was not in the migration zone when the review application was lodged on 3 August 2018.  The Department’s movement records generated on 8 August 2018 showed that the applicant departed Australia on 7 September 2017.

5. The applicant’s representative responded to the procedural fairness letter on 21 August 2018, within time, and confirmed that the applicant was outside the migration zone at the time of the review application, but that she had now returned and lodged a subsequent review application, which the Tribunal takes to mean relating to the refusal that is the subject of this decision.  Department movement records indicate the applicant arrived in Australia on 12 August 2018 at 11:20:57 and departed on 13 August 2018 @13:03:29. 

6. In this matter, 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 this matter.

   DECISION

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

   Jennifer Cripps Watts
   Member