1412201 (Migration)

[2015] AATA 3102

1412201 (Migration) [2015] AATA 3102 (14 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Lingling Ding
Mr Chen Zhi

CASE NUMBER:  1412201

DIBP REFERENCE(S):  BCC2014/985859

MEMBER:Adrian Ho

DATE:14 July 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 14 July 2015 at 12:44pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 11 July 2014. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

2. Ms Lingling Ding is referred to as the applicant in this decision.

3. 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.

4. All references to a section of an Act or to a regulation are references to the Migration Act and the Migration Regulations, respectively, unless otherwise indicated.

5. In the circumstances of this case, the primary decisions are reviewable if they are Part 5-reviewable decisions.  They are so, if at least one of the following circumstances existed at the time the applicant attempted to make the tribunal review application:

   ·the applicant was sponsored by an approved sponsor – s.338(2)(d)(i); and/or

   ·there was a pending application to the tribunal for review of a decision not to approve the sponsor as a standard business sponsor – s.338(2)(d)(ii).

6. In order to be ‘sponsored’ for s.338(2)(d)(i), the applicant must be identified in an approved nomination of an occupation under s.140GB that is in force at the time the review application is lodged (see MIBP v Lee [2014] FCCA 2881).

7. The tribunal wrote to the applicant and informed the applicant of the requirements laid out above, suggested to the applicant that the tribunal may not have jurisdiction as it appeared that neither of the two circumstances above existed at the time the tribunal review application was received, and invited comment by a certain date. 

8. In a written reply the applicant asserts that the review application is valid and that the existence of a pending nomination review with the tribunal was sufficient to engage the tribunal’s jurisdiction. 

9. The representative requested that the tribunal call him to discuss the matter. An officer of the tribunal called him and he stated that he disagreed with the position laid out in the tribunal’s letter and described it as fundamentally flawed.  The parties were provided with further time in which to address the tribunal’s jurisdiction.  No further contact has been received.

Paragraphs 338(2)(d)(i) and (ii)

1. The tribunal considers that since the Federal Court decision in MIAC v Islam [2012] FCA 195 it has been settled that it is a criterion for a Subclass 457 visa that “the non-citizen is sponsored by an approved sponsor”; that is, the applicant is identified in a nomination by an approved sponsor: r.4.02(1AA). That is sufficient to engage the ambit of the chapeau of s.338(2)(d) and therefore to make s.338(2)(d) generally applicable to reviews of Subclass 457 visa refusals. However, the Court’s decision in Islam did not, in the tribunal’s view, specifically consider whether the same reasoning applies to the sub-paragraphs of s.338(2)(d). 

2. The Federal Circuit Court held in Lee that the word ‘sponsored’ in s.338(2)(d)(i) requires being identified in a nomination that remained approved and in force.  That position has been confirmed by the Court more recently in Damore v. Minister for Immigration [2015] FCCA 1289.

3. Section 338(2)(d)(ii) requires that “an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.”

4. The word “sponsored” does not appear in s.338(2)(d)(ii), as it does in the chapeau of s.338(2)(d), and in s.338(2)(d)(i), and as it is referred to (and broadened) in r.4.02(1AA).

5. Being bound by and following the decisions of the courts, the tribunal accepts that where the word “sponsored” appears in any part of s.338(2)(d) it includes being identified in an approved nomination under s.140GB which is in force and has not ceased.

6. Section 5 defines an “approved sponsor” as a person who has been approved under s.140E and whose approval has not been cancelled and has not ceased. 

7. The opening words of s.140GB(1) state “An approved sponsor may nominate…”.  The words “sponsored by an approved sponsor” appear in both the chapeau of s.338(2)(d) and in s.338(2)(d)(i), but not in s.338(2)(d)(ii).  In the context of the Subclass 457 visa regime an “approved sponsor” is a person or entity that has current standard business sponsorship approval under s.140E that has not ceased and has not been cancelled. 

8. Being guided by the decisions of the courts and r.4.02(1AA) the tribunal considers that the words “sponsored by an approved sponsor” may be taken to mean, in the Subclass 457 visa context, “nominated by an approved standard business sponsor”.  Applying Lee and mindful of the definition of “approved sponsor” in s.5; in both cases, the nomination and the standard business sponsorship status must have been approved and must not have ceased.

9. Approval of sponsors occurs pursuant to s.140E, which is quite separate from the approval of nominations under s.140GB.   Sub-paragraph 338(2)(d)(ii) addresses itself to circumstances where there has been “a decision not to approve the sponsor”.  In the tribunal’s view it is the approval of sponsors pursuant to s.140E, and in particular an application to review a decision not to approve a person or entity as a sponsor, that is the subject of s.338(2)(d)(ii). 

10. The tribunal therefore prefers the view that s.338(2)(d)(ii) does not address itself to the concept of nomination, even though s.338(2)(d) as a whole (though its chapeau) is applicable to the Subclass 457 visa regime because being “sponsored” includes being “nominated”: Islam and r.4.02(1AA).

11. In the tribunal’s view the wording of s.338(2)(d)(ii) points to the approval of sponsors alone, and by not using the word “sponsored” as in other parts of s.338(2)(d), s.338(2)(d)(ii) points away from r.4.02(1AA), and therefore away from the concept of nomination. 

12. This is the interpretation recently adopted by the Federal Circuit Court in Ahmad v Minister for Immigration & Anor [2015] FCCA 1486[1], by which the tribunal is bound.

    [1] >

    On this construction, and applying Lee and Damore, s.338(2)(d)(i) is broad enough to admit an approved nomination under s.140GB by an approved standard business sponsor, where both approvals have not ceased, and, s.338(2)(d)(ii) is addressed to situations where the approval of the sponsor required by s.338(2)(d)(i) is lacking because there has been “a decision not to approve the sponsor” and that decision is being challenged on review and has not yet been determined by the tribunal: Ahmad.

13. The tribunal acknowledges that when the applicant attempted to apply for review, the applicant may not have had the benefit of the court’s insight in Lee.  In any event, the applicant has been given an opportunity to comment on the state of the law, and has done so, and the tribunal is nonetheless bound by and applies Lee and Damore in arriving at the above interpretation of s.338(2)(d)(i), and in determining its jurisdiction.

14. The applicant has not demonstrated that there was an approved nomination that was in force and which had not ceased on the day the applicant attempted to make the present tribunal review application.  On the evidence, the tribunal finds that on that day there was no relevant nomination approved and which had not ceased.  Paragraph 338(2)(d)(i) is therefore not engaged.

15. On the evidence, there was no pending tribunal review application of a decision not to approve the applicant’s would-be sponsor as a standard business sponsor, as required by s.338(2)(d)(ii): Ahmad.

16. Therefore the primary decisions are not Part 5-reviewable decisions by virtue of either subsection 338(2)(d)(i) or (ii).  On the evidence, the primary decisions are not Part 5-reviewable decisions by any other subsection of s.338. 

17. The tribunal finds that the primary decisions are not Part 5-reviewable decisions.  As the application for review does not pertain to any Part 5-reviewable decision, the tribunal does not have jurisdiction in this matter.

DECISION

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

Adrian Ho
Member