1505461 (Migration)

1505461 (Migration) [2015] AATA 3090 (8 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Derek Walsh

CASE NUMBER:  1505461

DIBP REFERENCE(S):  BCC204/3376102

MEMBER:Alison Mercer

DATE:8 July 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 08 July 2015 at 6:27pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 22 April 2015. 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. All references to a section of an Act or to a regulation are references to the Migration Act and Migration Regulations, respectively, unless otherwise indicated.

4. In the circumstances of this case, the primary decision is reviewable if it is a Part 5-reviewable decision.  A primary decision is a Part 5-reviewable decision if at least one of the following circumstances existed at the time the applicant made the review application to the Tribunal:

   ·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).

5. In order to be ‘sponsored’ for the purposes of 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 that the review application is lodged (see Minister for Immigration and Border Protection v Lee [2014] FCCA 2881).

6. The Tribunal wrote to the applicant via his agent on 13 May 2015 advising him of the requirements set out above and advising that the preliminary view of the Tribunal is that it may not have jurisdiction to review the decision to refuse to grant him a visa, as it appeared that neither of the 2 circumstances above existed at the time he lodged his application for review with the Tribunal.  The applicant was invited to comment on this information.

7. The Tribunal did not receive any response from the applicant or his agent.

   Paragraphs 338(2)(d)(i) and (ii)

8. The Tribunal is of the view that, since the Federal Court decision in Minister for Immigration and Citizenship v Islam [2012] FCA 195, it has been settled that it is a criterion for a subclass 457 visa that the ‘non-citizen is sponsored by an approved sponsor;’ that is, the applicant is identified in a nomination by an approved sponsor: r.4.02(1AA). That is sufficient to engage the ambit…