Allawadhi (Migration)

[2018] AATA 4837

Allawadhi (Migration) [2018] AATA 4837 (18 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mandeep Singh Allawadhi
Mrs Navdeep Kaur

CASE NUMBER:  1834203

DIBP REFERENCE(S):  BCC2018/3264660

MEMBER:Karen Synon

DATE:18 December 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 18 December 2018 at 10:08am

CATCHWORDS

MIGRATION – Temporary Skills Shortage (Short Tem) visas – Subclass 482 Temporary Skill Shortage – applicant not identified in a linked approved nomination – no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 140, 338, 347, 411, 412
Migration Regulations 1994, r 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 21 November 2018 for review of a decision by a delegate of the Minster for Immigration, dated 1 November 2018, to refuse to grant a Temporary Skills Shortage (short Tem) (subclass 482) visa.

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

3. This application for review was lodged on 21 November 2018 and a copy of the primary decision was provided to the Tribunal.

4. The Tribunal has jurisdiction to review a decision under 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.

5. They include decisions to refuse visas of various kinds, but the evidence before the Tribunal indicates that at the time the applicants applied for review, the first named applicant was not identified in a linked nomination under s.140GB of the Act that was either approved or pending.

6. Nor was there a valid and pending application for review before the Tribunal of a decision not to approve the linked nomination application (which was refused by the Department of Home Affairs on 1 November 2018) under s.140GB of the Act.

7. On 29 November 2018, the Tribunal invited the applicants’ written comments on the question of its jurisdiction by 13 December 2018.  In this letter the Tribunal explained that, at the time the applicants applied for review, the nomination identified in the visa application, was not approved under s.140GB or pending.

8. On 12 December 2018 a response was received stating that the nominator had re-applied for a nomination which was still be determined by the department and asked that the applicants’ AAT application be held until that time.

9. While the Tribunal notes that a new nomination in respect of the applicants was lodged on 20 November 2018, there is no utility in the Tribunal delaying its decision on the jurisdiction of this application as the criteria of the subclass 482 visa are such that this cannot be linked to the new nomination.

10. As there is no reviewable decision it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

    DECISION

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

    Karen Synon
    Member