1409045 (Migration)

[2015] AATA 3013

1409045 (Migration) [2015] AATA 3013 (1 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ashish Contractor

CASE NUMBER:  1409045

DIBP REFERENCE(S):  CLF2014/76729 CLF2014/98470

MEMBER:Denise Connolly

DATE:1 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 01 July 2015 at 12:27pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 22 May 2014 for review of a decision to refuse a Training and Research (Class GC) (Subclass 402) 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 (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. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 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 Class GC (Subclass 402) visa is MRT-reviewable under s.338(2) if the applicant made the visa application while in the migration zone and either the applicant is sponsored 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 sponsor has been made but at the time the application for review of the visa refusal is made, review of the sponsorship decision is pending.

3. ‘Sponsored’ includes being identified in a nomination under s.140GB of the Act. It is a criterion for the grant of a Subclass 402 visa that the applicant is identified in a nomination by an occupational trainee sponsor or a training and research sponsor; the nomination meets the criteria in r.2.72I; and the approval of the nomination has not ceased under r.2.75A of the Regulations (cl.402.221(1)).

4. In this case, the applicant made the visa application on 30 December 2013 while in the migration zone. He was nominated for an occupational traineeship by sponsor McKkkr’s Pty Ltd. However, on 2 May 2014, the nomination application lodged by McKkr’s Pty Ltd was refused. The delegate refused the visa because the applicant had not been identified in a nomination for an occupation, program or activity approved under s.140GB of the Act.     

5. The Tribunal formed the preliminary view that the decision is not reviewable because at the time the review application was lodged, on 22 May 2014, there was no nomination of an occupation or activity relating to the applicant approved and in force. There was also no review of a decision to not approve the sponsor, pending before the Tribunal. The sponsor, McKkr’s Pty Ltd was an approved occupational trainee sponsor.

6. The Tribunal wrote to the applicant on 14 April 2015 inviting his comments on whether a valid application for review had been made. The Tribunal indicated that, following the recent judgment of the Federal Circuit Court of Australia in MIBP v Lee [2014] FCCA 2881, the Tribunal was of the view that in order to be ‘sponsored’ for s.338(2)(d)(i), the applicant must be identified in an approved nomination by a training and research sponsor or an occupational trainee sponsor under s.140GB that was in force at the time the review application was lodged. Alternatively, for s.338(2)(d)(ii), there must be a pending review of the decision not to approve the sponsor before the Tribunal at the relevant time.

7. The applicant’s representative responded on 28 April 2015. He asserted that this approach would result in an unfair outcome as the nomination application was still under review. He noted the Tribunal had not made its decision in relation to the nomination application and he thought the invitation to comment on the validity of the review application in this case implied a negative decision in relation to the review of the nomination application.

8. The Tribunal has taken this submission into account. It notes that the review of the nomination application is a separate matter. In this case as the applicant had not been identified in a nomination under s.140GB of the Act that was in force at the time the application for review was lodged, s.338(2)(d)(i) is not met. At the time the application for review was lodged, there was also no application for review of a decision not to approve the sponsor as an occupational trainee sponsor which was pending before the Tribunal, for the purposes of s.338(2)(d)(ii).

9. The Tribunal therefore finds that the requirements of s.338(2)(d) are not met.

10. Accordingly, the Tribunal finds that the decision to refuse the applicant a Subclass 402 visa is not an MRT reviewable decision in accordance with s.338(2)(d) and r.4.02(1A). Nor is it a decision reviewable under any of the other subparagraphs of s.338 and r.4.02.

11. 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

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

    Denise Connolly
    Member