AMANDIP KAUR (Migration)

[2018] AATA 3845

AMANDIP KAUR (Migration) [2018] AATA 3845 (25 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs AMANDIP KAUR
Mr DALJIT SINGH
Miss MEHWISH VIRDI

CASE NUMBER:  1824663

DIBP REFERENCE(S):  BCC2017/2879500

MEMBER:Mr S Norman

DATE:25 September 2018

PLACE OF DECISION:  Sydney

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

Statement made on 25 September 2018 at 2:46pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – applicant not identified in a nomination – no Tribunal-reviewable decision – 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 24 August 2018 for review of a decision to refuse to grant the applicants Temporary Business Entry (Class UC) 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. They include decisions to refuse or cancel visas and a range of sponsorship and nomination decisions.

3. By letter of 5 September 2018 (dispatched by email to the authorised recipient), the Tribunal advised the applicant it appeared the merits review application was invalid as at the time the review application was lodged, the applicant was not identified in a nomination under s.140GB of the Migration Act 1958 (the Act) that was approved or pending and capable of supporting the grant of the subclass 457 visa application. The applicant was further advised that neither 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 of the Act. The applicant was then requested to comment in writing by 19 September 2018.

4. By undated letter lodged with the Tribunal,[1] the applicant said she was a citizen of India; that she had previously been granted a subclass 457 visa on 13 August 2013; that she had worked for two years as a Cafe Manager; that a nomination for a further visa was refused in November 2016; that she had found another employer who was willing to hire and sponsor her; that the related nomination was also refused; that a further nomination approval application was also refused; and she requested the Tribunal to consider her circumstances.

   [1] Tribunal – folio 34.

5. The Tribunal understands that a nomination application for the applicant, was lodged on 15 June 2018. This related to the applicant’s subclass 482 visa application. However, The Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 provides that a pending application for approval of a nomination made prior to 18 March 2018 (and still outstanding), or after 18 March 2018, cannot be used for an outstanding subclass 457 visa.

6. That being said, the Tribunal finds that for the reasons set out above, the applicant’s merits review application remains invalid. 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

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

   Mr S Norman
   Member