Barik (Migration) [2024] AATA 3417 (28 August 2024)

Last Updated: 26 September 2024

Barik (Migration) [2024] AATA 3417 (28 August 2024)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Pratap Kumar Barik

REPRESENTATIVE: Mr Jules Verne Pedrosa (MARN: 0429714)

CASE NUMBER: 2421646

HOME AFFAIRS REFERENCE(S): BCC2024/2261438

MEMBER: Sheridan Aster

DATE: 28 August 2024

PLACE OF DECISION: Melbourne

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

Statement made on 28 August 2024 at 2:39pm

CATCHWORDS
MIGRATION – Training (Class GF) visa – Subclass 407 (Training) – associated nomination refused – no reviewable decision – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 338, 347
Migration Regulations 1994 (Cth), r 4.02

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 7 July 2024 for review of a decision to refuse to grant the applicant a Training (Class GF) visa. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.
2. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (Cth) (the Act) if an application is properly made under s 347 or s 412 of that Act, or in limited circumstances not relevant to this application, s 29 of the Administrative Appeals Tribunal Act 1975 (Cth).
3. Sections 338 and 411 of the Act and reg 4.02(4) of the Migration Regulations 1994 (Cth) set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal and the circumstances in which they are reviewable. A decision to refuse a Training visa is reviewable if the applicant made the visa application while in the migration zone and the applicant is nominated by an approved sponsor at the time the application for review of the visa refusal is made or an application for review of a decision not to approve the nomination has been made but at the time the application for review of the visa refusal is made, review of the decision is pending.
4. The decision is not reviewable in the circumstances of this case because the applicant was not nominated by an approved sponsor as required by a criterion for the grant of the visa.
5. On 17 July 2024, the Tribunal invited the applicant to comment on the validity of the application for review. In response, the applicant’s representative explained that the applicant considered the actions of the delegate to be unfair. A request had been made for the delegate to delay their decision so that the applicant could withdraw the visa application and avoid having a visa refusal on his record. Nevertheless, it was acknowledged that the associated nomination had been refused.
6. As the delegate’s decision is not reviewable in these circumstances it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

DECISION

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

Sheridan Aster
Member