1418674 (Migration)

[2015] AATA 3105

1418674 (Migration) [2015] AATA 3105 (16 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Rupinder Kaur
Mr Phul Preet Singh (no registered surname)
Master Jaideep Singh

CASE NUMBER:  1418674

DIBP REFERENCE(S):  BCC2014/1516531

MEMBER:Karen Synon

DATE:16 July 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 16 July 2015 at 12:54pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 14 November 2014 for review of a decision to refuse the visa applicants a Temporary Business Entry (Class UC) Work (Skilled) (Subclass 457) visa.  For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

2. The primary review applicant, Rupinder Kaur (‘the applicant’), applied for the visa on 20 June 2014.  The delegate refused to grant the visa on 28 October 2014 on the basis that cl.457.223(4)(a) was not met.  The applicants provided to the Tribunal a copy of the department’s refusal 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: MIBP v Lee [2014] FCCA 2881 (‘Lee’).

7. On 30 January 2015 the Tribunal wrote to the applicants, via their authorised representative and registered migration agent, informing them of the requirements set out above and advising of the preliminary view that the application for review was not valid because it appeared that neither of these two circumstances existed at the time the Tribunal review application was received.  The Tribunal invited comments on the question of its jurisdiction by 13 February 2015.

8. In response on 13 February 2015 the Tribunal received a submission asserting that Lee is distinguishable to the matter under consideration because it related to a decision where both the approved nomination and the standard business sponsorship had ceased at the time of lodgment.  It was further contended that the Lee findings in relation to s.338(2)(d)(i) and (ii) appear to confuse the difference between sponsorship and nomination leading to an unintended consequence that the legislation did not intend with the process of ‘word-changing’ leading to a finding that confused the difference between having an approved sponsorship and an approved nomination.  It was submitted that the definition of sponsorship is not limited to having been identified in a nomination ‘that is approved’ under s.140GB but “simply includes that scenario”.  As such and given the department’s position and advise to the applicant that if she has an approved sponsor, the 457 visa application is a MRT–reviewable decision, it was put that the matter is reviewable.

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

9. 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).

10. 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 (‘Damore’).

11. 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.’

12. 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).

13. 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.

14. 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.

15. The opening words of s.140GB(1) state ‘[a]n 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.

16. 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 section 5, in both cases, the nomination and the standard business sponsorship status must have been approved and must not have ceased.

17. 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).

18. 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).

19. 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.

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

21. 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.

22. 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.  The Tribunal has carefully considered the response received however 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.

23. On the evidence before it contained in the primary decision, a copy of which the applicants provided, the Tribunal finds that the applicant was not the subject of 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.

24. 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.

25. There is no evidence the Tribunal's jurisdiction is engaged because of circumstances applicable to the remaining review applicants.

26. 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.

27. 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

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

    Karen Synon
    Member