1421029 (Migration)

[2015] AATA 3271

1421029 (Migration) [2015] AATA 3271 (7 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Hui Teng Pty Ltd ATF Miao Family Trust

VISA APPLICANTS:  Mr Xiaojiang Miao
Ms Peipei Jie
Miss Qianjin Miao

CASE NUMBER:  1421029

DIBP REFERENCE(S):  BCC2014/1834652

MEMBER:Antonio Dronjic

DATE:7 August 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 07 August 2015 at 10:05am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 22 December 2014 for review of a delegate of the Minister for Immigration dated 29 October 2014 to refuse to grant a Temporary Business Entry (Class UC) visa under s.65 of the of the Migration Act 1958 (the Act) to the review applicant.

2. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of the application. In summary, this is because while the applicant sought a visa on the basis of sponsorship by an Australian business, at the time the review application was lodged the applicants were not ‘sponsored by an approved sponsor’ and no review of a ‘decision to refuse the sponsor’ was pending in this tribunal as required under s.338(2)(d) of the Act.

   What is the applicable law?

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. At the time the applicant made the visa application the Class UC visa contained one subclass, Subclass 457. A decision to refuse to grant a Subclass 457 visa is an MRT-reviewable decision in certain circumstances.

5. On 28 July 2014 an application for a Temporary Business Entry (Class UC) – Temporary Work (Skilled) (subclass 457) visa was lodged by the visa applicants. According to departmental movement records, all of the applicants were off shore at the time of visa application.

6. Under s.338(9) of the Act, a decision prescribed for the purpose of that section is an MRT-reviewable decision. Regulation 4.02(4)(l) prescribes, for the purpose of s.338(9), a decision to refuse to grant a Subclass 457 visa if:

   (i)          the applicant is outside Australia at the time of application; and

   (ii)          the applicant was sponsored, as required by a criterion for the grant of the visa, by a specified type of sponsor. 

7. Accordingly, a refusal of a Subclass 457 visa application will be MRT-reviewable under r.4.02(4)(l) if the applicant is outside Australia at the time of (visa) application and was sponsored or nominated, at some point in time, and as required by a criterion for the grant of the visa.

8. There is no criterion that a subclass 457 visa applicant be “sponsored”. Instead, a subclass 457 visa applicant is required to meet the criteria in cl.457.223(4)(a) that they are identified in a nomination made by a standard business sponsor. In MIBP v Lee [2014] FCCA 2881 (Judge Nicholls, 10 December 2014), the Court found, when interpreting similar provisions in s.338(2)(d), that “sponsored” in the context of a subclass 457 visa refers to a nomination made under section 140GB which has been approved.

9. Accordingly, in order for jurisdiction to arise, at the time the review application was made to this Tribunal the primary visa applicant must, at some point prior to the application for review, have been the subject of an approved nomination, even in circumstances where such an approved nomination may have subsequently expired.

10. On 23 June 2015, the Tribunal wrote to the applicant outlining the requirements of s.338 of the Act, and the implications of the decision in MIBP v Lee and invited the applicant to comment on the validity of the application for review.

11. On 4 July 2015 the applicant responded in the following terms (Tribunal folios 18 &19):

    ‘We submit that the application is valid on the basis of being a Part 5‐reviewable decision under s338(2)(d)(ii) of the Migration Act 1958 (Cth). We believe that s338(2)(d)(ii) applies to the application above, as a logical and natural consequence of the reading of ‘sponsored’ in the immediately preceding clause, s 338(2)(d)(i), considered and held in MIBP v Lee [2014] FCCA 2881 (“Lee”).

    Section 338(2)(d)(ii) operates as an alternative to s 338(2)(d)(i). The application in this instance is for review of a visa application whose associated nomination application is currently under pending review (MRT case number 1421017). Following the above, we therefore submit that the application for review is valid, and that the Tribunal has jurisdiction in this matter under s 338(d)(ii) of theMigration Act.’

12. Under s.338(2)(d)(ii) the Tribunal will have jurisdiction to review a visa refusal where review of a related sponsorship refusal decision is pending at the time the visa refusal review application is made.[1] While the requirement for an approved nomination is the criterion which attracts the application of s.338(2)(d), the second limb in s.338(2)(d)(ii) is to be read on its own terms, such that it will be met by a pending application for review of a decision to refuse approval of the sponsorship.[2]

    [1] Ahmad v MIBP [2015] FCCA 1486 (Judge Street, 29 May 2015)

    [2] Ahmad v MIBP [2015] FCCA 1486 (Judge Street, 29 May 2015) at [9] to [10].

13. This interpretation was considered in the judgment of Ahmad v MIBP in which it was confirmed that s.338(2)(d)(ii) involves a distinct question from that in s.338(2)(d)(i) in that it focuses not on the subsequent nomination approval process in s.140GB, but instead relates to the decision to approve (or not approve) a sponsor under s.140E.[3]  Following this judgment a pending review of a nomination refusal is insufficient to enliven jurisdiction under s.338(2)(d)(ii).

    [3] Ahmad v MIBP [2015] FCCA 1486 (Judge Street, 29 May 2015) at [8] - [10].

14. Accordingly, although the Tribunal acknowledges that a review application was made on 22 December 2014 by the business sponsor concerning the refusal of the nomination, and this was pending at the time the visa review application was lodged on the same date, for the reasons above s.338(2)(d)(ii) simply does not contemplate a pending nomination review.

15. In the present case, the information before the Tribunal indicates that the primary visa applicant has never been identified in a nomination made by a standard business sponsor that was approved under section 140 GB. According to the primary decision record submitted by the applicant with the review application, the first business nomination application lodged by Hui Teng Pty Ltd ATF Miao Family Trust was refused by the Department on 29 September 2014. The second business nomination lodged by the sponsor on 30 September 2014 was also refused by the Department on 22 October 2014. A review application in respect of the related nomination decision was lodged at the Tribunal on 22 December 2014 concurrently with the visa review application. There is no suggestion that the applicant was the subject of an approved nomination by an alternative sponsor.

16. On the basis of the evidence before the Tribunal, it finds that at the time the visa review application was lodged, while Hui Teng Pty Ltd ATF Miao Family Trust was an approved sponsor at that time, the applicant was not ‘sponsored’ by Hui Teng Pty Ltd ATF Miao Family Trust because there was no approved nomination in respect of the primary applicant at any time. In this regard, the Tribunal is bound by the doctrine of precedent to follow the interpretation of the provision as set out in MIBP v Lee, which establishes that an approved nomination is required.

17. 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

    The Tribunal does not have jurisdiction in this matter.

    Antonio Dronjic
    Member