1617393 (Migration)

[2016] AATA 4827

1617393 (Migration) [2016] AATA 4827 (22 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nobuhito Sasaki

CASE NUMBER:  1617393

DIBP REFERENCE(S):  BCC2015/2625349 CLF2016/83947

MEMBER:Hugh Sanderson

DATE:22 December 2016

PLACE OF DECISION:  Sydney

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

Statement made on 22 December 2016 at 4:05pm

CATCHWORDS

Migration – Temporary Work (Long Stay Activity) (Class GB) visa – Subclass 401 (Temporary Work (Long Stay Activity)) – Religious Worker Stream – s 338(2)(d) – Reviewable decisions – Applicant not identified in a current approved nomination – Sponsorship nomination expired before visa refusal – No nomination application awaiting approval

LEGISLATION

Migration Act 1958, ss 140E, 140GB, 338(2)(d), 347

Migration Regulation 1994, Schedule 2 Part 401, r.4.02(4)

CASES

Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 20 October 2016 for review of a Temporary Work (Class GB) Long Stay Activity (Subclass 401) visa. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

2. Temporary work visas allow people to participate in highly specialised work, specific professions, cultural, social or research activities in Australia on a temporary basis. A person may be granted a Subclass 401 visa by meeting the requirements of one of four alternative ‘streams’, being:

   ·the Exchange stream;

   ·the Sport stream;

   ·the Religious Worker stream; or

   ·the Domestic Worker (Executive) stream.

3. Primary visa applicants must meet common criteria as well as criteria for the stream in which they apply for the visa. These are set out in Part 401 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. There is a three-stage application process for the Subclass 401 visa which requires:

   ·     a person seeking approval to be a temporary work sponsor;

   ·     an approved sponsor nominating an occupation or activity in relation to a visa holder, proposed visa applicant or a visa applicant; and

   ·     a person applying for the relevant class of visa.

5. 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.

6. The Tribunal wrote to the applicant on 15 November 2016. It was noted that 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 and nor was there any pending application before the Tribunal of a decision not to approve the sponsor under s.140E or decision not to approve the nomination under s.140GB. Accordingly the Tribunal may not have jurisdiction to hear the application. The applicant was invited to comment on or respond to this information.

7. The applicant’s agent responded by questioning whether the nomination of the applicant which was made in about August 2015 had expired. The Tribunal responded on 1 December 2016 noting that the Department’s database recorded two Religious Worker Nominations lodged by the Church of Scientology in respect of the applicant which were approved on 17 August 2015 and 28 September 2015. Both those nominations expired on 8 January 2016. The applicant’s agent responded to this information by stating that no communication had been sent by the Department asking the applicant to renew the nomination and as far as they had been aware the applicant still had a valid nomination.

   Does the Tribunal have jurisdiction under s.338(2)(d)?

8. Section 338(2)(d) is the provision enabling jurisdiction for onshore applicants seeking review of subclass 401 visa refusals. Relevantly, section 338(2)(d) provides:

   (d) where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

   (i)  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; or

   (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.

9. On 16 December 2015, the Full Federal Court handed down its decision in Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182 (Ahmad). The effect of this decision is that the Tribunal only has jurisdiction to conduct review of decisions to refuse subclass 401 visas to applicants seeking to meet primary criteria applying inside Australia in the following circumstances:

   a.Under s.338(2)(d)(i):

   i.where you are identified in an approved nomination made by a standard business sponsor, or

   ii.where you are identified in a nomination application which has not yet been decided by the Department;

   b.Under s.338(2)(d)(ii) - where the sponsor seeking to nominate the applicant has an application for review pending before the Tribunal, either:

   i.in relation to a decision to refuse the sponsor the status of standard business sponsor, or

   ii.in relation to a decision to refuse the sponsor an application for approval of a nomination application relating the applicant.

   Consideration

10. The current application was filed with the Department on 3 September 2015. The decision of the Department was made on 30 September 2016. By that time, the nomination by the sponsor had expired. No new application for sponsorship of the applicant has been applied for by the Church of Scientology.

11. As stated above the applicant has sought review on 20 October 2016.

12. The material before the Tribunal indicates the original sponsorship by the Church of Scientology was approved on 17 August 2015 and a second sponsorship nomination was approved on 28 September 2015. Both sponsorships expired on 8 January 2016. No further application for sponsorship of the applicant has been filed by the Church of Scientology.

13. The Tribunal finds that at the time of the review application the applicant was not identified in an approved nomination or was identified in a nomination application which had not yet been decided by the Department. Further, no application had been made to the Tribunal to review a decision of the Department to refuse any such sponsorship.

14. The Tribunal finds that the applicant is not ‘sponsored by an approved sponsor’ as required by s.338(2)(d)(i) as at the time the application to review the decision to refuse to grant the visa was made as the sponsor has not been approved under s.140E as the previous sponsorship has expired. The Tribunal finds that no jurisdiction arises under s.338(2)(d)(i).

15. On the basis of Ahmad the Tribunal also finds that the decision is not reviewable under s.338(2)(d)(ii) as there is no pending review of a decision under s.140E or s.140GB.

16. 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

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

    Hugh Sanderson
    Member