1415699 (Migration)

[2015] AATA 3018

1415699 (Migration) [2015] AATA 3018 (1 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Seongjun Ok

CASE NUMBER:  1415699

DIBP REFERENCE(S):  BCC2013/687740

MEMBER:Carolyn Wilson

DATE:1 July 2015

PLACE OF DECISION:  Adelaide

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

Statement made on 01 July 2015 at 11:17am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 18 September 2014 for review of a decision of a delegate of the Minister for Immigration dated 28 August 2014 to refuse to grant a Temporary Business Entry (Class UC) Subclass 457 visa.  For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

2. The Tribunal’s jurisdiction arises under s.348 of the Migration Act 1958 (the Act) if an application is properly made under s.347 for review of 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 are MRT-reviewable and the circumstances in which they are reviewable.

3. A decision to refuse a Class UC visa is MRT-reviewable in certain circumstances under s.338(2)(d).  Such a decision is MRT-reviewable if the applicant made the visa application while in the migration zone and, where it is a criterion for the grant of the visa that the applicant is ‘sponsored’ by an ‘approved sponsor’, either the applicant is sponsored by an approved sponsor at the time of application for review 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 the review of the sponsorship decision is pending: s.338(2)(d).

4. 'Sponsored' includes being identified in a nomination under s.140GB of the Act. It is a criterion for the grant of a subclass 457 visa in the standard business sponsorship stream that a nomination of an occupation in relation to the applicant made by a standard business sponsor has been approved under s.140GB of the Act and the approval has not ceased as provided for by r.2.75 of the Regulations

5. Following the decision of the Federal Circuit Court in MIBP v Lee [2014] FCCA 2881, for the purposes of s.338(2)(d)(i), there must have been, at the time the review application was made, a nomination of an occupation approved and in force.

6. For the purposes of s.338(2)(d)(ii), there must have been at the relevant time, a review of a sponsorship refusal decision pending before the Tribunal. The Tribunal does not have jurisdiction where an application for review of a decision to refuse a nomination was pending at the time the review application was lodged, as s.338(2)(d)(ii) only refers to review of a decision not to approve the sponsor.

7. In the visa application the applicant identified the sponsoring employer as K Kim and H Park. On 13 May 2013 the delegate approved the nomination application by K Kim and H Park.    That nomination ceased after 12 months, that is, by 13 May 2014.

8. The visa application was refused by the delegate for the first time on 28 June 2013 on the basis that the applicant did not meet cl.457.223B.   On review, the application was remitted on 10 April 2014 by a different Tribunal member on the basis the applicant met cl.457.223B.

9. The visa application was refused the second time on 1 September 2014 on the basis the applicant did not meet cl.457.223(4)(da).  When the applicant applied to the Tribunal for review on 18 September 2014 the nomination was no longer in force. 

10. On 2 June 2015, the Tribunal wrote to the applicant expressing a preliminary view that the Tribunal had no jurisdiction to conduct a review because the requirements of s.338(2)(d) were not met. The letter made reference to the recent decision of the Federal Circuit Court in MIBP v Lee referred to above and its effect on the interpretation of s338(2)(d)(i) of the Act.

11. The applicant’s representative responded in an email dated 17 June 2015.  They advised a new nomination application had been lodged on 16 June 2015 and provided evidence of this. 

12. The Tribunal finds that at the time the review application was lodged on 18 September 2014, the applicant was not sponsored by K Kim and H Park because the approved nomination for that employer had ceased on 13 May 2014.  There is no evidence before the Tribunal of an alternate nomination approval in existence at time of application for review in respect of the applicant, nor a relevant pending application for review of a decision to refuse  a sponsor sponsorship approval.   

13. The Tribunal therefore finds at time of application for review the applicant was not sponsored by an approved sponsor and no review of a decision not to approve the sponsor was pending. The applicant does not meet either s.338(2)(d)(i) or (ii). 

14. 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

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

    Carolyn Wilson
    Member