1419729 (Migration)

[2016] AATA 3192

1419729 (Migration) [2016] AATA 3192 (10 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Abid Latif

CASE NUMBER:  1419729

DIBP REFERENCE(S):  ASB2014/406 CLF2014/140235

MEMBER:Miriam Holmes

DATE:10 February 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 10 February 2016 at 10:47am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 3 December 2014 for review of a decision to refuse a Temporary Work (class GC) Training and Research (subclass  402) visa. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

2. 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.

3. A decision to refuse a sub class 402 visa application made by an onshore visa applicant is a MRT-reviewable decision under s.338(2)(d) as it is a criterion for the grant of the visa that the applicant is sponsored by an approved sponsor, and it is a prescribed temporary visa. In addition, however, a decision to refuse a subclass 402 visa application is only a MRT-reviewable decision where the applicant is “sponsored by an approved sponsor” at the time the review application is made as required by s.338(2)(d)(i) or there is a pending application for review of a decision not to approve the sponsor at the time the review application is made as required by s338(2)(d)(ii).

4. On 5 June  2015 the Tribunal wrote to the applicant and invited the applicant to comment on whether the review application was valid, because in order to make a valid application for review at the time the review application is lodged, either:

   ·the applicant is sponsored by an approved sponsor at the time the application to review the decision to grant the visa is made; (s.338(2)(d)(i) of the Act); or

   ·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; – s.338(2)(d)(ii).

5.    On 19 June 2015 the applicant sent a response to the Tribunal. The submissions made in the response are discussed in more detail below.

6.    The Tribunal made the following findings, based on the delegate’s decision record provided by the review applicant, the visa application and the applicant’s submissions lodged on 19 June 2015;

·The prospective employer, Golden Global Trading Pty Ltd, lodged with the Department an application for approval as a standard business sponsor. On 20 November 2013 Golden Global Trading Pty Ltd was approved as a standard business sponsor.

·On 18 October 2013 Golden Global Trading Pty Ltd also lodged with the Department an application for the approval of a nominated occupation for the position of an occupational trainee in the occupation of butcher (a nomination application) in relation to the applicant. On 15 January 2014 the nomination application was refused.

·On 18 October 2013 the applicant lodged an application for Temporary Work (Class GC)(sub class 402) visa. On 13 November 2014 the visa application by the applicant was refused on the basis that he did not meet cl.402.221, as he was not identified in an approved nomination.

·On 3 December 2014 the applicant lodged an application for review of the delegate’s decision to refuse to grant the visa application.

·On 3 December 2014 there was no pending review application lodged by the sponsor, Golden Global Trading Pty Ltd in relation to the decision to refuse the nomination application made on 15 January 2014.

·On 3 December 2014 there was no pending nomination application for the approval of a nominated occupation for the position of an occupational trainee in relation to the applicant with the Department.

7.    For the decision to be MRT-reviewable under s.338(2)(d)(i) the visa applicants must be “sponsored by an approved sponsor” at the time the review application regarding the decision to refuse to grant the sc 402 visa is made. For review applications made on or after 14 September 2009, the meaning of ‘sponsored’ includes being identified in a nomination of an occupation, made by a standard business sponsor, that has been approved under section 140GB of the Act, and that the approval has not ceased as provided for in regulation 2.75 of the Regulations.[1] 

[1]Section 337 of the Act and subregulation 4.02(1AA) of the Regulations

1. For the decision to be MRT-reviewable under s.338(2)(d)(ii), “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.” 

2. The Tribunal deferred making a decision in this case to await the outcome of the appeal in Ahmad v Minister for Immigration and Border Protection.

3. The Tribunal had regard to the recent decision of the Full Federal Court in Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182. In that judgement the Full Federal Court held that for the purposes of s338(2)(d)(i) the phrase “sponsored by an approved sponsor” includes not only a person with an approved sponsor who holds an approved nomination but also a person identified in a nomination application under s140GB.  The Full Court also held that for the purposes of s.338(2)(d)(ii) the expression “decision not to approve the sponsor” includes both the approval of the sponsor under s140E and the approval of the nomination under s140GB. Therefore, the Tribunal has jurisdiction to review a decision to refuse a visa application under s.338(2)(d), if at the time the review application was lodged one of the following circumstances are met:

   -the visa applicant is identified an approved nomination (under s338(2)(d)(i));

   -the visa applicant is identified in a pending nomination application under consideration by the Department (under s338(2)(d)(i));

   -there is a pending application for review of a decision not to approve the sponsor under s. 140E (under s.338(2)(d)(ii)); or

   -there is a pending application for review of a decision not to approve the nomination application under s.140GB (under s.338(2)(d)(ii));

4. The Court noted at paragraph 113, that although it is unnecessary to decide, the Court was “not disposed to accept …that s338(2)(d)(i) is satisfied where, at the time of the application for review of the visa decision, the visa applicant had previously been identified in a nomination, even if the nomination decision were adverse (and an application for review of that decision had not been made) or the nomination had by then lapsed.”

5. In this case, the applicant submitted that at the time the visa application was considered and refused that no decision had been made in relation to the nomination application that had been submitted by Golden Global Trading Pty Ltd on 18 October 2013. Further, the applicant submitted that if the decision was made earlier then the department should notify the sponsor and the applicant believes the sponsor must have lodged an application for review in relation to that decision to refuse the nomination application.

6. Whilst the Tribunal acknowledges the submissions made by the applicants, the Tribunal has considered the evidence available and is not satisfied that there was a pending nomination application at the time the visa review application was lodged and there was no pending review application made by the sponsor in relation to the decision to refuse the nomination application under s140GB.

7. The Tribunal is bound to apply the case law as set out in Ahmad’s case. In this case, the Tribunal finds that the sponsor had been approved as a sponsor on 20 November 2013, however the nomination application had been refused by a department delegate on 15 January 2014 and the applicant was not identified in a pending nomination application of an occupation as at 3 December 2014. Therefore, applying the reasoning in Ahmad’s case, the Tribunal finds that the decision of the department delegate to refuse the applicant’s sc.402 visa application is not an MRT reviewable decision for the purposes of s.338(2)(d)(i).

8. At the time the review application was lodged, there was no pending review of the decision to refuse the nomination application made on 15 January 2014, and there was no pending review application of a decision not to approve the employer as a standard business sponsor – the relevant sponsorship having been approved on 20 November 2013. Therefore, applying the reasoning in Ahmad’s case , the Tribunal finds that the decision of the department delegate to refuse the applicant’s sc.402 visa application is not an MRT reviewable decision for the purposes of s.338(2)(d)(ii).

9. The Tribunal is further satisfied that the relevant decision of the delegate is not an MRT-reviewable decision in relation to the applicant under any of the other subparagraphs of s.338 and r.4.02(4).

10. 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

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

    Miriam Holmes
    Senior Member