1516291 (Migration)

[2016] AATA 3435

1516291 (Migration) [2016] AATA 3435 (8 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Saddam Hameed

CASE NUMBER:  1516291

DIBP REFERENCE(S):  BCC2015/1286388

MEMBER:Michael Cooke

DATE:8 March 2016

PLACE OF DECISION:  Sydney

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

Statement made on 08 March 2016 at 2:40pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 26 November 2015 for review of a Subclass 457 refusal decision. 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 Regulations1994 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. At the time the applicant lodged the application for review of the Subclass 457 visa application the following situation applied:

   ·The applicant was identified in a nomination application under s.140GB which had not yet been approved;

   ·The nomination application had been made by an entity which had made an application under s.140E to be a standard business sponsor, but had not yet been approved.

4. For the Subclass 457 refusal decision to be a Part 5-reviewable decision, either limb of s.338(2)(d) must be met at the time the application for review of the visa decision was lodged (in addition to the other criteria in s.338(2)(d)).

5. Records indicate that the applicant did not have an approved sponsor at the time the review application was lodged. The applicant was the subject of an approved standard business nomination made by H Khans Pty Ltd and the nomination was approved on 12 May 2015. However, the SBS sponsorship agreement for H Khans Pty Ltd expired on 28 May 2015 and the nomination would have consequently expired 3 months thereafter.

6. The application for review was lodged on 26 November 2015. A new SBS sponsorship agreement for H Khans P/L was approved on 11 December 2015. The nomination was approved on the same day. However, at time of review, the applicant was not sponsored by an approved sponsor.

7. The decision is not reviewable under s.338(2)(d)(ii) as there was no pending review of a decision under s.140GB (nomination) or s.140E (standard business sponsor) at time of Tribunal application.

8. The decision is also not reviewable under s.338(2)(d)(i). This sub-section requires that 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. 'Sponsored' has been held to refer to being identified in a nomination application under s.140GB, irrespective of whether the nomination has been approved. In this instance, the applicant is identified in an application for nomination.

9. 'Approved sponsor' is defined in s.5(1) to mean: a person who has been approved by the Minister under s.140E...and whose approval has not been cancelled under s.140M, or otherwise ceased to have effect under s.140G in relation to that class; or a person (other than a Minister) who is a party to a work agreement. As the entity which made the application for nomination had not yet been approved as a standard business sponsor under s.140E and the previous approval had ceased to have effect, it was not an 'approved sponsor' at the time the application for review of the visa decision was lodged. Therefore, as the applicant was not identified in a nomination made by an approved sponsor at the time he made the application for review,  s.338(2)(d)(i) is not satisfied.

10. Thus the applicant is unable to rely upon the earlier sponsor and nomination approvals, as these had ceased by the time the application for review of the Subclass 457 visa refusal decision was made. He does not meet either limb of s.338(2)(d) at the time the application for review of the visa decision was lodged (in addition to the other criteria in s.338(2)(d)).

11. The Tribunal issued a letter inviting the applicant to comment on the validity of his application but he has chosen not to respond to the Invitation.

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.

    Michael Cooke
    Member