1505461 (Migration)

[2015] AATA 3090

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 of the chapeau of s.338(2)(d) and therefore to make s.338(2)(d) generally applicable to reviews of subclass 457 visa refusals. However, the Court’s decision in Islam did not, in the Tribunal’s view, specifically consider whether the same reasoning applies to the subparagraphs of s.338(2)(d).

9. The Federal Circuit Court held in Lee that the word ‘sponsored’ in s.338(2)(d)(i) requires being identified in a nomination that remained approved and in force.  That position has been confirmed more recently by the Court in the case of Damore v Minister for Immigration and Border Protection [2015] FCCA 1289.

10. Section 338(2)(d)(ii) requires that ‘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 grant the visa is made, review of the sponsorship decision is pending.’

11. The word ‘sponsored’ does not appear in s.338(2)(d)(ii) as it does in the chapeau of s.338(2)(d), and in s.338(2)(d)(i), and as it is referred to (and broadened) in r.4.02(1AA).

12. Being bound by, and following, the decisions of the Courts, the Tribunal accepts that where the word ‘sponsored’ appears in any part of s.338(2)(d), it includes being identified in an approved nomination under s.140GB which is in force and has not ceased.

13. Section 5 defines an ‘approved sponsor’ as a person who has been approved under s.140E and whose approval has not been cancelled and has not ceased. 

14. The opening words of s.140GB(1) state ‘An approved sponsor may nominate…’. The words ‘sponsored by an approved sponsor’ appear in both the chapeau of s.338(2)(d) and in s.338(2)(d)(i) but not in s.338(2)(d)(ii).  In the context of the subclass 457 regime, an ‘approved sponsor’ is a person or entity that has current standard business sponsorship approval under s.140E that has not ceased and has not been cancelled.

15. Being guided by the Court decisions and r.4.02(1AA), the Tribunal considers that the words ‘sponsored by an approved  sponsor’ may be taken to mean, in the subclass 457 context, ‘nominated by an approved standard business sponsor.’  Applying Lee and being mindful of the definition of ‘approved sponsor’ in s.5, in both cases, the nomination  and the standard business sponsorship status must have been approved and must not have ceased.

16. Approval of sponsors occurs pursuant to s.140E, which is quite separate from the approval of nominations under s.140GB.  Subparagraph 338(2)(d)(ii) address itself to circumstances where there has been ‘a decision not to approve the sponsor.’  In the Tribunal’s view, it is the approval of sponsors pursuant to s.140E, and in particular, an application to review a decision not to approve a person or entity as a sponsor, that it the subject of s.338(2)(d)(ii).

17. The Tribunal therefore prefers the view that s.338(2)(d)(i) does not address itself to the concept of nomination, even though s.338(2)(d) as a whole (through its chapeau) is applicable to the subclass 457 visa regime because being ‘sponsored’ includes being ‘nominated’: Islam and r.4.02(1AA).

18. In the Tribunal’s view, the wording of s.338(2)(d)(ii) refers to the approval of sponsors alone, and by not using the word ‘sponsored’ as in other parts of s.338(2)(d), s.338(2)(d)(ii) is not intended to refer to r.4.02(1AA) and therefore not to the concept of nomination.

19. This is the interpretation recently adopted by the Federal Circuit Court in Ahmad v Minister for Immigration and Anor [2015] FCCA 1486, by which the Tribunal is bound.

20. On this construction, and applying Lee and Damore, s.338(2)(d)(i) is broad enough to encompass an approved nomination under s.140GB by an approved standard business sponsor, where both approvals have not ceased, and s.338(2)(d)(ii) encompasses situations where the approval of the sponsor required by s.338(2)(d)(i) is lacking because there has been ‘a decision not to approve the sponsor’ and that decision is the subject of a review that has not yet been determined by the Tribunal: Ahmad.

21. The Tribunal acknowledges that when the applicant attempted to apply for review, he may not have been aware of Lee.  However, he has been given an opportunity to comment on the relevant legal issues and has elected not to do so.  The Tribunal is bound by, and applies, Lee and Damore in taking the above interpretation of s.338(2)(d)(i) and in determining its jurisdiction.

22. Based on the material before it, the Tribunal finds that the applicant was not the subject of an approved nomination that was in force and which had not ceased on the day the applicant made his review application.  The Tribunal further finds that there was not a pending application to the Tribunal for review of a decision not to approve the applicant’s proposed employer as a standard business sponsor.

23. Therefore, the primary decision is no Part 5-reviewable under s.338(2)(d)(i) or (ii).  On the evidence, the Tribunal is satisfied that the decision is not a Part 5-reviewable decision under any other subsection of s.338.

24. As the application for review is not a Part 5-reviewable decision, the Tribunal does not have jurisdiction in this matter. 

    DECISION

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

    Alison Mercer
    Member