1508366 (Migration)

[2015] AATA 3197

1508366 (Migration) [2015] AATA 3197 (27 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gihan Rajith Perera

CASE NUMBER:  1508366

DIBP REFERENCE(S):  BCC2015/1245136

MEMBER:Mary-Ann Cooper

DATE:27 July 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 27 July 2015 at 11:06am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 20 June 2015 for review of for review of a decision to refuse a Temporary Work (Long Stay Activity) (Class GB) (Subclass 401) visa.  For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

2. The Tribunal’s jurisdiction arises under s.348 of the Migration Act 1958 (the Act) if an application is properly made under s.347 for review of an MRT-reviewable decision. Section 338 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are MRT-reviewable and the circumstances in which they are reviewable.

3. A decision to refuse a Class GB (Subclass 401) visa is an MRT-reviewable decision in certain circumstances. Under s.338(2)(d), where it is a criterion for the visa that the applicant is “sponsored” by an “approved sponsor” and the visa is of a kind prescribed for the purposes of that section, these include where either (i) the applicant is sponsored by an approved sponsor at the time the application for review of the visa refusal is made; or (ii) an application for review of a decision not to approve the sponsor has been made but review of the sponsorship decision is pending. A Subclass 401 (Temporary Work (Long Stay Activity)) visa is prescribed for the purposes of s.338(2)(d): r4.02(1A).

4. As defined, ‘sponsored’ includes being identified in a nomination under s.140GB of the Act. It is a criterion for the grant of a Subclass 401 visa that the applicant is identified in a nomination of an occupation or activity approved under s.140GB, that the nomination was made by a person who was, at the time the nomination was approved, a religious worker sponsor, a long stay activity sponsor, an exchange sponsor or a sport sponsor, and the approval of the nomination has not ceased under r.2.75A of the Regulations (cl.401.212).

5. In considering the meaning of the term “sponsored by an approved sponsor”, in the context of a subclass 401 visa review made onshore, the Tribunal has had regard to the recent judgement in MIBP v Lee [2014] FCCA 2881 (Lee). In that decision the Federal Circuit Court held, in construing s.388(2)(d), that the Tribunal did not have jurisdiction to review a decision to refuse a subclass 457 visa application where there was no approved nomination in force at the time the review application by the visa applicant was lodged with the Tribunal.  The Court held that for a person to be ‘sponsored by an approved sponsor’ for the purposes of s.338(2)(d)(i) there must be an approved nomination of an occupation in force under s.140GB of the Act in respect of the visa applicant at the time of the review application is lodged. The Tribunal acknowledges that the decision in Lee related to a subclass 457 visa however considers it is highly persuasive in the context of this subclass 401 visa application.

6. In this case, the applicant was sponsored by Carnegie South Cricket Club. On 3 June 2015, the delegate refused the nomination application lodged by it in respect of the applicant. As advised by the applicant’s representative and as reflected in Tribunal records, the Cricket Club applied for review of that decision on 20 June 2015. The applicant’s visa application was also refused on 3 June 2015 and an application for review of that decision lodged on 20 June 2015.    

7. The Tribunal formed the preliminary view that the decision refusing the visa application is not reviewable because, at the time the review application was lodged, there was no nomination of an occupation or activity approved and in force in respect of the applicant nor was there any review of a decision not to approve the sponsor pending before the Tribunal. The Tribunal wrote to the applicant on 7 July 2015 and invited him to comment on the validity of the application for review. The comments were due by 21 July 2015 and were received at 11.30 pm on that date. The applicant’s representative submitted in response, that ‘if there is a valid review application been made in relation to nomination refusal decision prior to visa review application and that application is still pending, review application for the SC 401 visa refusal is valid and the tribunal has jurisdiction..” 

8. As noted above, section 338(2)(d)(i) provides for a right of review for an onshore subclass visa 401 in circumstances where “the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made”. Applying the principles set out in MIBP v Lee, this means that at the time the review application is lodged there must be an approved nomination in force. As there was no associated nomination for the applicant which was in force on 20 June 2015 when this visa review application was lodged, the Tribunal finds that the review application was not a valid application for review under s.338(2)(d)(i).

9. Nor was there a reviewable decision under s.338(2)(d)(ii) because it is only in circumstances where there is an application for review of a decision not to approve the sponsor that the Tribunal will have jurisdiction.The Tribunal observes that subparagraph 338(2)(d)(ii) does not use the words “sponsored” and “approved sponsor”. Rather, it uses the words “sponsor” and “sponsorship” and these are defined terms in the legislation. Notably, the defined terms in the legislation for an “approved sponsor”, “sponsor” and “sponsorship” do not include any reference to either subregulation 4.02(1AA) of the Regulations or section 140GB of the Act.

10. The Tribunal considers that the wording of s.338(2)(d)(ii), in conjunction with the provisions  regarding the approval of a sponsor and  approval of a nomination, do not allow for a nomination refusal decision to be regarded as  “a decision not to approve the sponsor” under s.338(2)(d)(ii). The view that no review is available in these circumstances has been found to be correct in the Federal Circuit Court decisions of Ahmad v Minister for Immigration and Anor [2015] FCCA 1486 (Ahmad) and Noorani v. Minister for Immigration and Border Protection [2015] FCCA 1551. It was confirmed in Ahmad (at [8]-[10]) 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. Following this judgment, a pending review of a nomination refusal is insufficient to enliven the Tribunal’s jurisdiction under s.338(2)(d)(ii).

11. In the present matter Departmental records confirm that the Carnegie Cricket Club was approved as a sponsor in October 2014. It follows that, in the applicant’s circumstances, because the sponsorship of his nominator had earlier been approved, there could be no application in respect of a refusal of approval of the sponsor which could meet the requirements at s.338(2)(d)(ii).

12. Therefore the Tribunal finds that, on 20 June 2015, when the applicant lodged his application for review of the decision to refuse him a subclass 401 visa with the Tribunal, there was no application for review pending before the Tribunal of a decision not to approve the Carnegie Cricket Club as a sponsor.

13. Accordingly, the Tribunal finds that the applicant’s application for review does not meet the requirements set out in subparagraph 338(2)(d)(ii) of the Act. 

14. It follows that the Tribunal finds that the delegate’s decision is not an MRT-reviewable decision under either subparagraph 338(2)(d)(i) or (ii) of the Act and r.4.02(4). The Tribunal is further satisfied that the relevant decision of the delegate is not an MRT-reviewable decision under any of the other subparagraphs of s.338 and r.4.02(4).

15. Accordingly, the Tribunal finds that the delegate’s decision to refuse the subclass 401 visa is not an MRT-reviewable decision.

16. As the delegate’s decision is not MRT-reviewable in these circumstances it follows that the application for review was not properly made under s.347 for review of an MRT-reviewable decision for the purposes of s.348 and the Tribunal does not have jurisdiction in this matter.

    DECISION

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

    Mary-Ann Cooper
    Member