1418700 (Migration)

[2015] AATA 3780

1418700 (Migration) [2015] AATA 3780 (30 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  THE TRUSTEE FOR THE WAESMINA TRUST

CASE NUMBER:  1418700

DIBP REFERENCE(S):  BCC2014/2671061

MEMBER:Don Lucas

DATE:30 November 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 30 November 2015 at 2:46pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 3 November 2014, to refuse the approval of a nomination made under section 140GB of the Migration Act 1958 (the Act). This decision is reviewable under s.338(9) of the Act.

2. The review application was lodged with the Tribunal on 17 November 2014. For the following reasons, the Tribunal has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

3. Section 347(2) and r.4.02(5) of the Migration Regulations 1994 specify who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(9) and r.4.02(4)(d) an application for review may only be made by the approved standard business sponsor who made the nomination: r.4.02(5)(c).

4. On 4 November 2015 the Tribunal wrote to the applicant inviting submissions on the question of the Tribunal’s jurisdiction inviting comment to be provided by 18 November 2015. No comment or response has been received. The Tribunal’s invitation was set out in the following terms:

   Migration Act s.338(9) prescribes certain matters that are reviewable by this Tribunal. Under Migration Regulation 4.02(4)(d), this includes decisions made under s.140GB(2) of the Act to refuse to approve a nomination relating to an occupation under the subclass 457 temporary work scheme.

   Under r.4.02(5)(c), an application for review of such a decision may only be made by the approved sponsor who made the nomination. Relevantly, the sponsor who made the nomination must be approved as a sponsor at the time the Tribunal receives the application for review of the nomination decision.

   Information available from the Department’s Integrated Client Service Environment (ICSE) database indicates that at the time the application for review was made on 17 November 2014, the entity who made the present nomination, the Trustee for the Waesmina Trust, had not been approved as a standard business sponsor at that time. Although ICSE records indicate that this entity was approved as a standard business sponsor on 22 July 2015, and a nomination made pursuant to this sponsorship was also approved on 22 July 2015, these events postdate the circumstances in existence at the time the application for review was made on 17 November 2014. The subsequent sponsorship approval has no bearing on the question of the Tribunal’s jurisdiction in the current nomination review. This is because at the time the application for review of the nomination decision was made, it was not made by a sponsor which was approved at the relevant time.

5. As the decision that is the subject of the review application is a decision covered s.338(9) and r.4.02(4)(d), application for review could only be made by the approved sponsor that made the nomination. In the present case, the review application was made by an entity that was not at the time of review application an approved standard business sponsor.

6. As such, the application for review is not an application properly made under s.347 and it follows that the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Don Lucas
   Member