1511029 (Migration)

[2016] AATA 3480

1511029 (Migration) [2016] AATA 3480 (14 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr COLIN DUGGAN

CASE NUMBER:  1511029

DIBP REFERENCE(S):  BCC2014/3234354

MEMBER:Dione Dimitriadis

DATE:14 March 2016

PLACE OF DECISION:  Sydney

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

Statement made on 14 March 2016 at 9:02am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 13 August 2015 for review of a decision of a delegate of the Minister for Immigration, dated 24 July 2015, to refuse to grant Temporary Business Entry (Class UC) visas to the applicant under s.65 of the Migration Act 1958 (the Act). 

2. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

3. 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.

4. A decision to refuse a Class UC 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 to review the decision to refuse to grant the visa is made, or 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.

5. ‘Sponsored’ includes being identified in a nomination under s.140GB of the Act. In the case of a Subclass 457 visa applicant who seeks the visa on the basis of being nominated by a standard business sponsor, cl.457.223(4)(a) requires that a nomination of an occupation in relation to the applicant has been approved under s.140GB of the Act and the nomination was made by a person who was a ‘standard business sponsor’ at the time the nomination was approved and the nomination has not ceased. A ‘standard business sponsor’ is a person who is an ‘approved sponsor’; and is approved as a sponsor in relation to the standard business sponsor class by the Minister under s.140E(1) of the Act: s.5 and s.140E of the Act and r.1.03 and r.2.58 of the Regulations.

6. The Tribunal formed the preliminary view that the decision is not reviewable because at the time the review application was lodged, the applicant was not identified in a nomination under s.140GB of the Act that was approved or pending. 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.

7. The Tribunal wrote to the applicant on 19 February 2016 inviting comments by 4 March 2016 on whether a valid application for review had been made.  

8. On 4 March 2016 the Tribunal received an email from the applicant’s representative who stated that the applicant acknowledges that his original sponsor has withdrawn the nomination. However, the applicant has advised that a different sponsor, THE Mining Pty Ltd, is in the process of lodging a nomination on his behalf.

9. The Tribunal has considered the submission but finds that, at the time the application for review was lodged by the applicant on 13 August 2015, the applicant was not identified in a nomination that was approved or pending, the applicant was not sponsored by an approved sponsor and there was not 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.  

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

11. Accordingly, the Tribunal finds that the decision to refuse the applicant a Subclass 457 visa is not a reviewable decision in accordance with s.338(2)(d) and r.4.02(1A). 

12. 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

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

    Dione Dimitriadis
    Senior Member