1408845 (Migration)

[2015] AATA 3307

1408845 (Migration) [2015] AATA 3307 (21 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Claire Murphy

CASE NUMBER:  1408845

DIBP REFERENCE(S):  BCC2014/302201

MEMBER:Marten Kennedy

DATE:21 August 2015

PLACE OF DECISION:  Adelaide

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

Statement made on 21 August 2015 at 4:19pm

STATEMENT OF DECISION AND REASONS

1. The Tribunals Amalgamation Act (Cth) 2015 took effect on 1 July 2015.  Transitional provisions of that Act had the effect that an application for review to the Migration Review Tribunal (now abolished) is taken to be an application to the Administrative Appeals Tribunal.  A purported application was made to the Migration Review Tribunal on 19 May 2014 for review of a decision to refuse to grant the applicant a Temporary Business Entry (Class UC) – Temporary Work(Skilled) (subclass 457) visas. 

2. For the following reasons, I have found that neither the Migration Review Tribunal nor as a consequence the Administrative Appeals Tribunal had or has jurisdiction in respect of this matter.

   Background

3. The primary visa applicant applied for the visa in reliance on a nominated position as a Hair or Beauty Salon Manager Retail Manager with Tears of the Sea Pty Ltd, operating Essential Beauty outlets in Western Australia.

4. Tears of the Sea Pty Ltd was approved by the Minister as a Standard Business Sponsor.  The Minister however refused to approve the nomination of the position with the sponsor on 31 March 2014.  Tears of the Sea Pty Ltd applied for review of that decision in the Migration Review Tribunal on 17 April 2014.

5. The Minister refused to grant the applicant a visa on 2 May 2014.  A purported application for review of that decision was lodged with the Migration Review Tribunal on 29 May 2014

6. The Migration Review Tribunal wrote to the applicant on 24 April 2015 raising concerns as to the validity of the purported application for review.  The purported applicant was also present during a hearing of a separate review brought by her employer, and I took the opportunity to explain my concerns as to jurisdiction at that time.

7. I deferred making a determination as to jurisdiction pending completion of the review relating to the refusal to approve the nomination of the position with the sponsor.  Tears of the Sea Pty Ltd subsequently withdrew its application for review of the decision to refuse to approve the nomination of a position on 13 August 2015.

   Jurisdiction

8. At the time the purported application for review was lodged, the Migration Review Tribunal’s jurisdiction arose under s.348 of the Migration Act 1958 (the Act) if an application is properly made under s.347 for review of what was then termed an ‘MRT-reviewable decision’. Section 338 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that were ‘MRT-reviewable’ and the circumstances in which they were reviewable.

9. A decision to refuse a subclass 457 visa application made by an onshore visa applicant was an ‘MRT-reviewable decision’ under s.338(2)(d) as it is a criterion for the grant of the visa that the applicant is sponsored by an approved sponsor, and it is a prescribed temporary visa.

10. For review applications made on or after 14 September 2009, the meaning of ‘sponsored’ includes being identified in a nomination of an occupation, made by a standard business sponsor, that has been approved under section 140GB of the Act, and that the approval has not ceased as provided for in regulation 2.75 of the Regulations.[1] 

    [1]Section 337 of the Act and sub-regulation 4.02(1AA) of the Regulations

11. However, a decision to refuse a subclass 457 visa application was only an ‘MRT-reviewable decision’ where the applicant was “sponsored by an approved sponsor” at the time the review application is made as required by s.338(2)(d)(i) or there was a pending application for review of a decision not to approve the sponsor at the time the review application is made as required by s338(2)(d)(ii).

    “Sponsored by an approved sponsor”: No jurisdiction under section 338(2)(d)(i) of the Act

12. In MIBP v Lee[2] at [43] to [44] the Federal Circuit Court held that the Migration Review Tribunal did not have jurisdiction to review a decision to refuse a subclass 457 visa application where there was no approved nomination in force at the time the visa applicant lodged his review application with the Migration Review Tribunal:

    [43]. I agree with the Minister that, in essence, that analysis is relevant to the current case and, respectfully, applying the same process of “word-changing” adopted by Robertson J, results in the following.

    [44] First, s.338(2)(d) of the Act requires that there be reference to a criterion for that visa. Second, that criterion must be satisfied at the time of the application for review to the Tribunal. In the current case the relevant criterion derives from s.140GB of the Act (see cl.457.223(4)(a)(ii) of the Regulations). That criterion was, that for the delegate’s decision to be an MRT-reviewable decision there must be an approved nomination of an occupation in respect of the visa applicant.

    [45] Respectfully applying the analysis in Islam, there is a correlation between the term “sponsored by an approved sponsor” in s.338(2)(d) of the Act and the term “nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act”.  That latter, therefore, applies in relation to s.338(2)(d)(i) of the Act.     (my emphasis)

    [2][2014] FCCA 2881

13. In the present matter, there was no approved nomination of the occupation in respect of the visa applicant at the time of the application for review in the Migration Review Tribunal.  The only relevant nomination was refused by the Minister on 31 March 2014.  The purported application for review in the Migration Review Tribunal was made on 29 May 2014.

14. I have also had regard to other decisions of the Court finding the tribunal’s application of the principle in Lee to be correct.[3]  The decision in Noorani in particular confirms that where a review of the nomination refusal was pending at the time the Subclass 457 review application was lodged, the Tribunal’s application of Lee and Ahmad (see below) was correct and there was no jurisdiction.

    [3] Noorani v MIBP [2015] FCCA 1551, Damore v MIBP [2015] FCCA 1289 , Singh v MIBP [2015] FCCA 1465

15. I have had regard to the recent decision of the Federal Circuit Court in Kandel v MIBP.[4] In Kandel the Court found that the tribunal had jurisdiction where the approved sponsor lodged a further application for approval of a nominated occupation moments before the review application was lodged with the tribunal, notwithstanding that a previous application for approval of a nomination had been refused.

    [4][2015] FCCA 2013

16. The Court accepted a submission by the applicant and subsequently accepted by the Minister that where, relevantly to that case, the applicant was a person identified within a nomination under s.140GB of the Act by an approved sponsor, the non-citizen would be a person who is ‘sponsored’ by an approved sponsor for the purpose of s.338(2)(d)(i) of the Act when read with r.4.02(1AA) (my emphasis).

17. In the present case, no further application for approval of a nominated position had been made in respect of the visa applicant at the time of the purported application for review in the tribunal.  I do not understand Kandel to contradict Lee in the circumstances of the present case, where the corresponding nomination had been refused and no subsequent application for approval of a nomination made prior to the purported application for review in the tribunal.  Similarly, I do not consider that the applicant is a person identified in a nomination under s.140GB of the Act where that nomination has been refused – or at least I consider that I remain bound by Lee to conclude that they are not, notwithstanding the decision in Kandel.

    “Pending application for review of a decision not to approve the sponsor”: No jurisdiction under section 338(2)(d)(ii) of the Act

18. In Ahmad v MIBP[5], the Federal Circuit Court confirmed that s.338(2)(d)(ii) involves a distinct question from that in s.338(2)(d)(i) in that it focuses not on the subsequent nomination approval process in s.140GB, but instead relates to the decision to approve or not approve a sponsor under s.140E.

    [5] [2015]FCCA 1486 at [8] to [10]

19. In the present case, there has been no decision by the Minister not to approve Tears of the Sea Pty Ltd as a standard business sponsor under s.140E.  To the contrary, the Minister approved that application.  In any event, there was no pending review of such a decision before the tribunal at the time of the purported application.

20. I am satisfied that the relevant decision of the delegate was not an ‘MRT-reviewable decision’ under any of the other subparagraphs of s.338 and r.4.02(4).

21. As the delegate’s decision was not reviewable by the Migration Review Tribunal it follows that the application for review was not properly made and the Migration Review Tribunal did not have jurisdiction in that matter.  It further follows that the Administrative Appeals Tribunal does not have jurisdiction in this matter

    DECISION

    The Tribunal does not have jurisdiction in this matter.

    Marten Kennedy
    Member