Zou (Migration)

[2017] AATA 1712

Zou (Migration) [2017] AATA 1712 (1 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Tianyu Zou

CASE NUMBER:  1714056

DIBP REFERENCE(S):  BCC2017/561052

MEMBER:Rania Skaros

DATE:1 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 01 August 2017 at 11:32am

CATCHWORDS

Migration – Employer Nomination (Permanent) visa – Subclass 186 Employer Nomination Scheme – Applicant not in migration zone

LEGISLATION

Migration Act 1958, ss 5, 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 30 June 2017, to refuse to grant a Employer Nomination (Permanent) visa 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 30 June 2017. 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. Information before the Tribunal indicates that the applicant was not in Australia at the time of the application for review. On this basis, the Tribunal formed the preliminary view that the application was not validly made. On 3 July 2017 the Tribunal wrote to the applicant and invited the applicant to comment on the validity of the application for review. The response was due on 17 July 2017 however to date no response has been received by the Tribunal.

5. As the Department’s movement records show that the applicant was not in Australia at the time of review application, the Tribunal finds that the applicant was 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

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

   Rania Skaros
   Member