Panchana (Migration) [2019] AATA 1507 (15 May 2019)

Last Updated: 27 June 2019

Panchana (Migration) [2019] AATA 1507 (15 May 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANTS: Mr Worawit Panchana
Miss Fonthip Wannarak

CASE NUMBER: 1908268

DIBP REFERENCE(S): BCC2017/2825901

MEMBER: K. Chapman

DATE: 15 May 2019

PLACE OF DECISION: Brisbane

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

Statement made on 15 May 2019 at 1:36pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – outside migration zone when review application was lodged – not a reviewable decision – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 338, 347
Migration Regulations 1994 (Cth), r 2.72

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 4 April 2019 for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Regional Employer (Class RN) (Permanent) (Subclass 187) visas under s.65 of the Migration Act 1958 (‘the Act’). For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.
2. On 22 March 2019, the delegate refused to grant the applicants the Subclass 187 visas. The Tribunal is satisfied that this decision was notified to the applicants in an email sent to the first named applicant’s personal email address. On 4 April 2019, when the applicants applied electronically to the Tribunal for review of the visa refusal decision, they provided a copy of that decision with their application for review. Subsection 338(2) of the Act is relevant to this application for review given the particulars of the Subclass 187 visa application made.
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 who 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 Department’s movement records indicate that both of the applicants departed Australia on 21 March 2019 and returned on 22 April 2019. They were therefore not in the migration zone when the review application was made on 4 April 2019. In order to afford the applicants natural justice, by correspondence dated 18 April 2019, the Tribunal Registry wrote to them inviting their comment by 2 May 2019 on the validity of the application for review. This correspondence outlined that it appeared they were not in Australia on the date that the application for review was made.
5. On 23 April 2019, the first named applicant responded to the above correspondence outlining that he and the second named applicant were both offshore on the date the review application was made, providing reasons why they had to depart Australia during that time. Further submissions were received from the first named applicant on 28 April 2019 and 5 May 2019, providing a chronology of events and contentions that they received erroneous advice with respect to their migration matters.
6. The Tribunal must apply the law to the facts of this matter in an impartial and dispassionate fashion, even if the result is upsetting to the applicants.
7. Following careful consideration of the evidence, the Tribunal finds that the applicants were not in the migration zone at the time the review application was made. As the decision that is the subject of the review application is a decision covered by s.338(2), the application for review could only be made by the applicants if they were inside the migration zone at the time the review application was made pursuant to s.347(3).
8. Therefore, the delegate’s decision in the circumstances is not a reviewable decision under s.338(2) or under any of the other subparagraphs of s.338 and s.347. It follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

DECISION

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

K. Chapman
Member