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

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

The tribunal considers that since the Federal Court decision in MIAC v Islam [2012]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] AATA 3102
Decision Date: 14 July 2015

CaseChat Overview and Summary

In the case of 1412201 (Migration), the applicant sought a review of certain decisions made by the Minister for Immigration. The Federal Circuit Court was tasked with determining whether the tribunal had jurisdiction to review these decisions. The primary issue before the court was whether the applicant's nomination and sponsorship approvals were in force at the time the review application was made, and whether these approvals rendered the primary decisions reviewable under the relevant provisions of the Migration Act.

The court found that the applicant had not demonstrated the existence of an approved nomination that was in force and had not ceased on the day the review application was made. The court further noted that there was no pending tribunal review of a decision not to approve the applicant's sponsor, as required by the relevant subsection. As a result, the court concluded that the primary decisions were not reviewable by virtue of either subsection 338(2)(d)(i) or (ii). The court also found that the primary decisions were not reviewable by any other subsection of section 338. Consequently, the tribunal did not have jurisdiction to review the primary decisions.

The court's reasoning was based on the interpretation of the relevant provisions of the Migration Act and recent case law, including Lee and Damore. The court held that the tribunal was bound by the interpretation of section 338(2)(d) set out in these cases, and applied this interpretation in determining its jurisdiction. The court found that the applicant had not satisfied the conditions necessary to engage the review provisions, and therefore the tribunal did not have jurisdiction to review the primary decisions.

The court's decision was that the tribunal did not have jurisdiction to review the primary decisions made by the Minister for Immigration. The application for review was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.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.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.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.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. 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.DECISIONThe Tribunal does not have jurisdiction in this matter.Adrian HoMember The Tribunal does not have jurisdiction in this matter.

Ratio Decidendi

Legal Principle Established

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