1505381 (Migration)

[2015] AATA 3199

1505381 (Migration) [2015] AATA 3199 (21 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr David Emmanuel Sprungli

CASE NUMBER:  1505381

DIBP REFERENCE(S):  CLF2015/24988

MEMBER:Dione Dimitriadis

DATE:21 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 21 July 2015 at 12:20pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 20 April 2015 for review of a decision to refuse a Training and Research (Class GC) (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 Class GB (Subclass 402) visa is reviewable under s.338(2) if the applicant made the visa application while in the migration zone and either the applicant is sponsored by an approved sponsor at the time the application for review of the visa refusal is made, or an application for review of a decision not to approve the sponsor has been made but at the time the application for review of the visa refusal is made, review of the sponsorship decision is pending.

4. Following the judgment of the Federal Circuit Court of Australia in MIBP v Lee [2014] FCCA 2881, for the purposes of s.338(2)(d)(i), there must have been, at the time the review application was made, a nomination of an occupation approved and in force. This judgment concerned a Subclass 457 visa. However, the Tribunal considers that it is highly persuasive in the review before the Tribunal of a refusal of a Subclass 402 visa. The Tribunal finds that for the purposes of s.338(2)(d)(ii), there must have been at the relevant time, a review of a sponsorship refusal decision pending before the Tribunal. The Tribunal does not have jurisdiction where an application for review of a decision to refuse a nomination was pending at the time the review application was lodged, as s.338(2)(d)(ii) refers to review of a decision not to approve the sponsor.

5. In this case, the applicant was sponsored by Felix Media Pty Ltd (the sponsor). On 14 November 2014, a delegate refused the nomination application lodged by Felix Media Pty Ltd. The applicant lodged an application for review of the visa refusal on 20 April 2015.   

6. The Tribunal formed the preliminary view that the decision is not reviewable because at the time the review application was lodged, there was no nomination of an occupation, program or activity approved and in force. There was also no review of a sponsorship refusal decision pending before the Tribunal.

7. The Tribunal wrote to the applicant on 2 June 2015 inviting comments on whether a valid application for review had been made. 

8. The Tribunal received submissions from the applicant’s representative who submitted that the Tribunal has jurisdiction to conduct the review in accordance with s.338(2)(d)(ii). The representative stated that the nomination application by Felix Media Pty Ltd and the Subclass 402 visa application by the applicant were made on 15 May 2014 and the nomination application was refused on 14 November 2014. On 30 November 2014 the applicant’s sponsor applied to the Tribunal for a review of the decision to refuse the nomination. On 10 April 2015 the applicant was notified of the refusal of his Subclass 402 visa application and advised that he may be entitled to apply for review of the decision to refuse the visa. 

9. The representative stated that in the applicant’s application for review of a refusal of the visa, there is an approved sponsor which has lodged an application with the Tribunal for review of the refusal of the nomination. The representative stated that in MIBP v Lee the period of approval of the nomination had ceased so there was no approved sponsor. The representative stated that MIBP v Lee  determines how s.338(2)(d) and r.4.02(1AA) operate in relation to an application for a Temporary Skilled Work Subclass 457 visa and can be distinguished as the decision turned on whether the approved sponsor’s nomination for 12 months had ceased or lapsed. The representative stated that in the applicant’s case, the approved sponsor’s nomination has not ceased, lapsed, expired or been cancelled. The approved sponsor’s application has not yet been finally determined in accordance with the legal process. The approved training and research sponsor, Felix Media Pty, has identified the applicant in the nomination in cl.402.221(1)(a)(i) in accordance with s.140GB(1)  of the Act and lodged a review of the refused nomination.

10. The representative also referred to a decision of the Migration Review Tribunal (differently constituted) made on 19 October 2012. This decision was made prior to the judgment in MIBP v Lee.  The representative submitted that the delegate failed to consider the relevant consideration in the response to its “natural justice” invitation. The representative submitted that in accordance with s.69 of the Act non-compliance by the Minister with Subdivision AB in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.

11. The Tribunal has considered the submissions but finds that it does not have jurisdiction in the case before it. The Tribunal is bound by the judgment in MIBP v Lee [2014] FCCA 2881 and considers that it applies to Subclass 402 visas. The Tribunal finds that, at the time the application for review was lodged on 20 April 2015, the applicant had not been identified in a nomination of an occupation, program or activity approved under s.140GB of the Act and that was in force. The nomination by Felix Media Pty Ltd had been refused. Therefore s.338(2)(d)(i) is not met. At the time the application for review was lodged, there was also no application for review of a decision not to approve the sponsor, which was pending before the Tribunal, for the purpose of s.338(2)(d)(ii).

12. The Tribunal therefore finds that the requirements of s.338(2)(d) are not met.

13. Accordingly, the Tribunal finds that the decision to refuse the applicant a Subclass 402 visa is not a reviewable decision in accordance with s.338(2)(d) and r.4.02(1A). As the delegate’s decision is not reviewable in these circumstances it follows that the application for review was not properly made under s.347 for review of a reviewable decision for the purposes of s.348 and the Tribunal does not have jurisdiction in this matter.

    DECISION

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

    Dione Dimitriadis
    Member