1509686 (Migration)

[2016] AATA 3567

1509686 (Migration) [2016] AATA 3567 (22 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vichetra Ngil

CASE NUMBER:  1509686

DIBP REFERENCE(S):  BCC2015/943574 CLF2015/44239

MEMBER:Alison Mercer

DATE:22 March 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 22 March 2016 at 3:23pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 17 July 2015 for review of a decision made by the Department of Immigration and Border Protection (the Department) on 30 June 2015 not to grant the applicant a Class GB (Temporary Work (Long Stay Activity)) subclass 401 (Religious Worker) 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 to grant a Class GB (Temporary Work (Long Stay Activity)) subclass 401 (Religious Worker) made by an onshore applicant is reviewable under s.338(2)(d) of the Act as it is a criterion for the grant of the visa that the applicant is sponsored by an approved sponsor, and it is a prescribed temporary visa.  In addition, however, a decision to refuse a subclass 401 visa application is only reviewable by the Tribunal if the applicant is ‘sponsored by an approved sponsor’ at the time the review application is made (as required by s.338(2)(d)(i)), or there is a pending application for review of a decision not to approve the sponsor at the time the review application is made (s.338(2)(d)(ii)).

4. The Tribunal wrote to the applicant via his agent on 15 February 2016 to invite him to comment on whether the review application was valid or not.  The Tribunal noted that at the time the review application was lodged, the applicant was not identified in a nomination made under s.140GB of the Act that was approved, or that was pending, and nor was there a pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E, or a decision not to approve the nomination under s.140GB of the Act.  The applicant was requested to provide any comments he wished to make by 29 February 2016 and was advised that these would be considered by a Tribunal Member who would determine whether the review application was valid.

5. On 23 February 2016, the applicant’s agent wrote to the Tribunal to advise that it was assumed that the nomination approval had lapsed but as she did not have a copy of the nomination application approval letter from the Department, she was unable to be definitive.  She indicated that she had lodged an FOI request to the Department to obtain a copy of the file relating to the applicant’s nomination by the Dhamaram Buddhist Temple Inc to clarify this matter, as well as a s.362A request to the Tribunal for the material held by it.  She further requested that the Tribunal not determine the validity issue until 14 days after the requested documents had been received by her from either the Department or the Tribunal.

6. On 26 February 2016, the Tribunal wrote again to the applicant via his agent to advise that it did not have a copy of the nomination approval letter issued to Dhamaram Buddhist Temple Inc by the Department but instead enclosed a print out of the Department’s Integrated Client Services Environment (ICSE) database which indicated that when the nomination was lodged (21 May 2014).  In addition, the Tribunal noted that, pursuant to r.2.75(2), an approved nomination ceased on the earliest of a range of circumstances, which relevantly included a nomination ceasing 12 months after the day on which it was approved.  A copy of r.2.75 was enclosed for reference.

7. On 29 February 2016, the applicant’s agent requested an extension of time to provide comments and this was granted to 3 March 2016.  A further request for an extension of time to respond was made on that date by the agent on the basis that there was no evidence that the Department database record could be relied upon or that the Dhamaram Buddhist Temple Inc had not subsequently lodged a new nomination application.  She noted that the applicant’s former agent had not retained any records that would have clarified this issue and requested an extension of time to respond on the basis that she was still waiting to receive information from the Department pursuant to her FOI request lodged on 4 December 2015.  She stated that the applicant should not be disadvantaged by the Department’s delay in processing the FOI request, and that this information was crucial to their ability to respond to the Tribunal’s invitation.  She further noted that the case had not yet been constituted to a Tribunal Member for consideration.

8. On 4 March 2016, the Tribunal wrote again to the applicant’s agent to advise that a Senior Member had considered the request and advised that the matter would be constituted to a Tribunal Member for consideration within the next 7 days.  Accordingly, an extension of time to provide comments was granted until 11 March 2016.

9. On 8 March 2016, the Tribunal received a further extension of time request from the applicant’s agent on the basis that the FOI request to the Department was still unresolved and the Department had not provided a timeframe for its resolution despite her request.

10. On the same date, the Tribunal responded by email advising that it had contacted the Department to clarify these issues, and received advice that there was no pending nomination or approved nomination in relation to the applicant as at 17 July 2015, the date on which the review application was lodged.  The Tribunal stated that the Department advised that their records indicated that the only subclass 401 nomination was lodged on 1 April 2014 and approved on 21 May 2014.  This nomination was linked to the visa application which was refused on 31 March 2015 and re-notified on 30 June 2015.  The Tribunal attached a copy of the Department’s nomination approval letter dated 31 May 2014.  The Tribunal advised that the Senior Member confirmed that the matter would be allocated to a Tribunal Member in the current week for consideration and reiterated that any submissions in relation to the validity of the review application be provided to the Tribunal by 11 March 2016.

11. The Tribunal did not receive any further submissions from the applicant or his agent regarding the validity of the review application by 11 March 2016, or indeed any further communication since that date.  Accordingly, the Tribunal has made its decision on the evidence before it.  It makes the following findings:

    ·Dhamaram Buddhist Temple Inc was approved as a religious worker sponsor by the Department on 22 April 2013, valid until 21 April 2016;

    ·it lodged a nomination in respect of the applicant for a subclass 401 visa on 1 April 2014 and the Department approved this nomination on 21 May 2014;

    ·the applicant applied for a subclass 401 visa on 4 April 2014;

    ·by virtue of r.2.75(2)(b), the nomination ceased 12 months after the day on which it was approved (that is, on 21 May 2015);

    ·the visa application was refused on 30 June 2015;

    ·the applicant lodged a review application in respect of the visa refusal on 17 July 2015; and

    ·as at 17 July 2015, there was no pending review application lodged by the sponsor, Dhamaram Buddhist Temple Inc, in relation to a nomination refusal or a refusal to approve Dhamaram Buddhist Temple Inc as a sponsor; and

    ·as at 17 July 2015, there was no pending nomination application for approval with the Department in relation to the applicant for the position of Religious Worker.

12. For the decision to refuse the applicant a visa to be reviewable by the Tribunal under s.338(2)(d)(i), the visa applicant must be ‘sponsored by an approved sponsor’ at the time the review application in relation to the subclass 401 visa is made.  For review applications made on or after 14 September 2009, the meaning of ‘sponsored’ includes being identified in a nomination of an occupation, made by a sponsor, that has been approved under s.140GB of the Act, where the approval has not ceased as provided for in r.2.75 of the Regulations (see s.337 of the act and r.4.02(1AA) of the Regulations).

13. For the decision to be reviewable by the Tribunal under s.338(2)(d)(ii), ‘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 refuse to grant the visa is made, review of the sponsorship decision is pending.’

14. The Tribunal has regard to the recent Full Federal Court decision in Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182, in which the Full Federal Court held that, for the purposes of s.338(2)(d)(i), the phrase ‘sponsored by an approved sponsor’ includes not only a person with an approved sponsor who holds an approved nomination but also a person identified in a nomination application under s.140GB. The Full Court also held that, for the purposes of s.338(2)(d)(ii), the expression ‘decision not to approve the sponsor’ includes both the approval of a sponsor under s.140E and the approval of a nomination under s.140GB.

15. Therefore, the Tribunal has jurisdiction to review a decision to refuse a subclass 401 visa application under s.338(2)(d) if at the time the review application was lodged, one of the following circumstances was met:

    ·the visa applicant is identified in an approved nomination (s.338(2)(d)(i));

    ·the visa applicant is identified in a pending nomination application under consideration by the Department (s.338(2)(d)(i));

    ·there is a pending application for review of a decision not to approve the sponsor under s.140E (s.338(2)(d)(ii)); or

    ·there is a pending application for review of a decision not to approve a nomination application under s.140GB (s.338(2)(d)(ii)).

16. The Court noted at [113] that although it was unnecessary to decide the issue definitively, the Court was ‘not disposed to accept… that s.338(2)(d)(i) is satisfied where, at the time of the application for review of the visa application, the visa applicant had previously been identified in a nomination, even if the nomination decision were adverse (and an application for review of that decision had not been made) or the nomination had by then lapsed.’

17. The Tribunal is satisfied that the applicant did not meet any of the circumstances identified in the 4 dot points above at the time he lodged his review application with the Tribunal on 17 July 2015.  Applying the reasoning in Ahmad’s case, the Tribunal finds that the Department’s decision to refuse his subclass 401 visa is not reviewable by the Tribunal pursuant to s.338(2)(d)(i) or (ii) and is therefore not a reviewable decision.

18. The Tribunal is further satisfied that the relevant decision of the delegate is not reviewable by the Tribunal under any of the other subparagraphs of s.338 and r.4.02(4).

19. 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

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

    Alison Mercer
    Member