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

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.
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.
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: MIBP v Lee [2014] FCCA 2881 (‘Lee’).
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.
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…

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 3105
Decision Date: 16 July 2015

CaseChat Overview and Summary

This matter involved the applicants, who sought review of certain decisions made under the Migration Act. The Tribunal, in this instance, was tasked with determining whether it had the jurisdiction to review these decisions. The applicants had raised concerns about the primary decisions and sought their reconsideration by the Tribunal. The legal issue at hand was whether the Tribunal had the authority to review the primary decisions in question. Specifically, the Tribunal needed to determine if the primary decisions were subject to review under Part 5 of the Migration Act, which pertains to review of administrative decisions.

The Tribunal examined the nature of the primary decisions and the applicable legal provisions to ascertain if they fell within the scope of Part 5-reviewable decisions. It found that the primary decisions did not constitute Part 5-reviewable decisions because they did not involve the making, proposed making, or upholding of a decision that was subject to review under that part of the Act. As a result, the Tribunal concluded that it did not have the jurisdiction to review the primary decisions. Consequently, the application for review was dismissed for lack of jurisdiction.

The Tribunal's decision was based on a careful analysis of the relevant statutory provisions and the nature of the primary decisions. The Tribunal found that the primary decisions did not fit the criteria for Part 5-reviewable decisions, and therefore, it lacked the authority to review them. The applicants' application for review was dismissed on the grounds that the Tribunal did not have jurisdiction in the matter. The Tribunal's decision was final, and no further review was possible under the Migration Act.

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

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 The Tribunal does not have jurisdiction in this matter.Karen SynonMember

Ratio Decidendi

Legal Principle Established

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