Abdillah (Migration)

[2018] AATA 3337

Abdillah (Migration) [2018] AATA 3337 (26 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Reza Abdillah
Miss Ayesha Reneta Abdillah
Mrs Meidhita  

CASE NUMBER:  1813342

DIBP REFERENCE(S):  BCC2017/1756837

MEMBER:Stavros Georgiadis

DATE:26 July 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 26 July 2018 at 12:56pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – no Tribunal-reviewable decision – sponsored by an approved sponsor – approved nomination of an occupation – no jurisdiction      

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 5, 140, 338, 347, 411, 412
Migration Regulations 1994, Schedule 2 cl 457.223(4)(a), rr 2.58, 2.75, 4.02

CASES

Ahmad v MIBP [2015] FCAFC 182

Dyankov v MIBP [2016] FCCA 2167

MIBP v Lee [2014] FCCA 2881

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 8 May 2018 for review of a decision to refuse to grant Temporary Business Entry (Class UC) Subclass 457 visas. 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. At the time the applicants made their visa application the Class UC visa contained one subclass, Subclass 457. A decision to refuse to grant a Subclass 457 visa is a reviewable decision in certain circumstances. For primary decisions made on or after 14 October 2003, such a decision is reviewable if an applicant made the visa application while in the migration zone and, where it is a criterion for the grant of the visa that the applicant is “sponsored” by an “approved sponsor”, either the applicant is “sponsored” by an “approved sponsor” at the time the application for review of the visa refusal is made or an application for review of a decision not to approve the sponsor has been made, but at the time the application for review of the visa refusal is made, the review of the sponsorship decision is pending: s.338(2)(d) and r.4.02(1A).

4. ‘Sponsored’ includes being identified in a nomination under s.140GB of the Act: r.4.02(1AA) of the Regulations. It is a criterion for the grant of a Subclass 457 visa in the standard business sponsorship stream that a nomination of an occupation in relation to the applicant made by a standard business sponsor has been approved under s.140GB of the Act and the approval has not ceased, as provided for by r.2.75 of the Regulations: cl.457.223(4)(a) of Schedule 2 to the Regulations.

5. Following the decision of the Federal Circuit Court in MIBP v Lee [2014] FCCA 2881, to meet the requirements of s.338(2)(d)(i) in respect of a decision to refuse a Subclass 457 visa on the basis of sponsorship by an Australian employer, there must have been at the time the review application was made, an approved nomination of an occupation in respect of the applicant which was in effect at that time. Essentially, the requirements of cl.457.223(4)(a) must be met. The subsequent judgement in Dyankov v MIBP [2016] FCCA 2167 follows Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182 and confirms there is no jurisdiction where the applicant’s nomination application was refused and there is no pending nomination application and no pending review of the nomination application at the time the visa refusal review application is lodged.

6. From the documents on the Department’s file, the applicant’s prospective employer sponsor is identified as Stephen Pantelos (sole trader). The visa application was refused on 17 April 2018 on the basis that the primary applicant was not the subject of an approved nomination and therefore, the requirements in cl.457.223(4)(a) of the Regulations were considered not met. Departmental records indicate that the prospective employer sponsor was not approved as a standard business sponsor as on 9 June 2017 the Department had refused such an application. The prospective employer sponsor has not lodged any application for review of the decision to refuse the business sponsorship application. The applicants were advised on 9 June 2017 that the prospective employer sponsor did not have an approved nomination.

7. On 18 June 2018, the Tribunal wrote to the applicants via their migration agent regarding the delegate’s decision to refuse to grant 457 Temporary Business Entry (Class UC) visas inviting any comments in writing by 2 July 2018, on whether a valid application has been made.  The Tribunal advised the applicants in that letter of its preliminary view that the application for review was not valid, and that the Tribunal did not have jurisdiction to conduct a review.  There was no response received from, or on behalf of, the applicants regarding the invitation to comment within the timeframe allowed, and the Tribunal has thus proceeded to make a decision in this matter. 

8. On the basis of the Department’s records before it, the Tribunal finds that at the time the review application was lodged, the primary applicant was not identified in a nomination under s.140GB of the Migration Act 1958 that was approved or pending. Nor was there a pending application for review before the Tribunal of either a decision not to approve the employer sponsor under s.140E, or any decision not to approve the nomination under s.140GB of the Act. There is nothing to suggest that the primary applicant was the subject of an approved nomination by an alternative sponsor. For these reasons, the Tribunal finds that the requirements of s.338(2)(d)(i) are not met.

9. The Tribunal also considered whether the alternative requirements of s.338(2)(d)(ii) are met in respect of this application. Section 338(2)(d)(ii) requires that: “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.” 

10. As aforementioned, at the time the review application was lodged, there was no pending review of the decision to refuse the sponsorship or related nomination application, and the Tribunal considered whether a decision to refuse a nomination application under s.140GB is “a decision not to approve the sponsor” for the purposes of s.338(2)(d)(ii). For the following reasons, the Tribunal has concluded that it is not.

11. The Tribunal’s view is that “a decision not to approve the sponsor” refers to a decision to refuse an employer applicant approval as a sponsor under s.140E, and not to a decision to refuse a nomination under s.140GB. The Tribunal considers that a decision not to approve a nomination under s.140GB of the Act is different to a decision not to approve a ‘sponsor’. The Tribunal notes the word, ‘sponsor’ is commonly in reference to an employer or a proposed employer. What is approved or not approved in an application under s.140GB is a ‘nomination’ of an occupation. Also, the statutory scheme in Division 3A of the Act draws a distinction between an application to be approved as a sponsor under s.140E, and an application to have a nomination approved under s.140GB. Subdivision B is entitled ‘Approving sponsors and nominations’ and different provisions apply to the different applications and approval processes. Hence, the Tribunal considers approving or refusing a sponsor is a distinct process to approving a nomination.

12. The provision in s.338(2)(d)(ii) uses the same language as the provisions relating to sponsorship approval in that subdivision, and therefore, appears to refer to the sponsorship approval process rather than the nomination approval process.  For these reasons, and given that there was no pending review of any sponsorship decision or nomination application in respect of the applicant at the time the review of the visa refusal was lodged, the Tribunal finds that the requirements of s.338(2)(d)(ii) are not met.  The Tribunal is satisfied that the prospective employer sponsor was not an approved sponsor at that time and there was no review pending in the Tribunal in respect of any decision not to approve the sponsor.

13. Having considered the information before it discussed, the Tribunal finds that at the time the application for review of the Subclass 457 visa refusal decision was made, the primary applicant was onshore but not ‘sponsored’ by an ‘approved sponsor’ and no review of any decision not to approve the sponsor was pending. 

14. Accordingly, the requirements of s.338(2)(d) are not met in respect of all applicants.

15. 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

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

    Stavros Georgiadis
    Member