Bhatti (Migration)

[2016] AATA 4987

Bhatti (Migration) [2016] AATA 4987 (9 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Muhammad Omar Jamil Bhatti
Mrs Aisha
Master Muhammad Asher Omar Bhatti

CASE NUMBER:  1601344

DIBP REFERENCE(S):  BCC2013/603001

MEMBER:Karen Synon

DATE:9 May 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 09 May 2016 at 11:36am

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 140, 338, 347, 411, 412
Migration Regulations 1994, Schedule 2 cl 457.223(4)(a), rr 2.75, 4.02

CASES

Ahmad v MIBP [2015] FCAFC 182

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 5 February 2016 for review of a decision to refuse the visa applicants a Temporary Business Entry (Class UC) Work (Skilled) (Subclass 457) visa.  For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

2. The primary visa applicant, Mr Muhammad Omar Jamil Bhatti, applied for the visas on 13 March 2013.  The delegate refused to grant the visa on 15 January 2016 on the basis that cl.457.223(4)(a) was not met.  The applicants provided to the Tribunal a copy of the department’s decision.

3. 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.

4. All references to a section of an Act or to a regulation are references to the Migration Act and the Migration Regulations, respectively, unless otherwise indicated.

5. For onshore visa applications, the Tribunal has jurisdiction to review decisions to refuse to grant a Subclass 457 visa in circumstances as set out in s.338(2).  Paragraphs (a) to (c) of s.338(2) apply in all cases, requiring that the visa is one which could be granted to a person in the migration zone, and the person made the application in the migration zone after being immigration cleared.  A subclass 457 visa application is one which can be granted while a person is in the migration zone and, on the basis of other information before the Tribunal, it is satisfied that the applicant made the applications while in the migration zone.

6. In addition, to meet the criteria for this stream, the applicant must be the subject of an approved nomination that has not ceased: cl.457.223(4)(a).  Therefore, as this is a prescribed temporary visa, a criterion for which is that the non-citizen is sponsored by an approved sponsor, for a decision to be Part 5-reviewable, the additional requirements in s.338(2)(d) must be met.  A subclass 457 review applicant can meet subparagraph 338(2)(d)(i) or (ii) or both, depending on the status of the related sponsor approval under s.140E, or nomination under s.140GB, at the time of the review application.

7. For the decision to be MRT-reviewable under s.338(2)(d)(i) the visa applicant must be “sponsored by an approved sponsor” at the time the review application regarding the decision to refuse to grant the subclass 457 visa is made.  For review applications made on or after 14 September 2009, the meaning of 'sponsored' includes being identified in a nomination of an occupation, made by a standard business sponsor that has been approved under section 140GB of the Act, and that approval has not ceased as provided for in regulation 2.75 of the Regulations.

8. For the decision to be MRT-reviewable under s.338(2)(d)(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.”  In this context, the Tribunal has had regard to the decision of the Full Federal Court in Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182 (‘Ahmad’).  In that judgement the Full Federal Court held that for the purposes of s338(2)(d)(i) the phrase “sponsored by an approved sponsor” includes not only a person with an approved sponsor who holds an approved nomination but also a person identified in a nomination application under s140GB.  The Full Court also held that for the purposes of s.338(2)(d)(ii) the expression “decision not to approve the sponsor” includes both the approval of the sponsor under s140E and the approval of the nomination under s140GB.

9. In the circumstances of this case, the primary decisions are reviewable if they are Part 5-reviewable decisions.  They are so, if at least one of the following circumstances existed at the time the applicant attempted to make the Tribunal review application:

   ·the applicant was sponsored by an approved sponsor – s.338(2)(d)(i);

   ·there was a pending application to the Tribunal for review of a decision not to approve the sponsor as a standard business sponsor under s.140E– s.338(2)(d)(ii);

   ·there is a pending application for review of a decision not to approve the nomination application under s.140GB (under s.338(2)(d)(ii)).

10. As recorded in the delegate's decision, a copy of which was provided to the Tribunal, the nomination application made by the applicant's sponsor was finalised on 27 February 2015.  Tribunal records confirm that on 20 May 2015 the applicant's sponsor withdrew its application for review of the department’s decision to refuse the nomination.  Further, there is no evidence or claim that there was a nomination application in respect of the applicant pending at the time this review application was lodged on 5 February 2016.

11. On 17 March 2016 the Tribunal wrote to the applicants advising of its preliminary view that the application for review was not valid because it appeared that none of the three circumstances set out above existed at the time the application for review was received and inviting comment on the validity of the review application.  The Tribunal invited comments on the question of its jurisdiction by 31 March 2016.

12. A brief response was received on 31 March 2016 which read “the application (sic) has instructed our office that he has no comment to make in relation to the Tribunal’s invitation”.

13. In relation to the context of this matter the Tribunal notes the court's comments in Ahmad at paragraph 113 that it was “not disposed to accept…that s338(2)(d)(i) is satisfied where, at the time of the application for review of the visa decision, the visa applicant had previously been identified in a nomination, even if the nomination decision were adverse (and an application for review of that decision had not been made) or the nomination had by then lapsed.”

14. As a matter of fact, on the basis of the material before the Tribunal, at the time the application to review the visa refusal decision was made on 5 February 2016, the applicant was not identified in either an approved or a pending nomination by an approved sponsor.

15. Therefore, applying the reasoning in Ahmad's case, the Tribunal finds that the decision of the Department's delegate to refuse the applicant's subclass 457 visa application is not a Part 5-reviewable decision for the purposes of s.338(2)(d)(i).

16. Further, at the time the review application was lodged on 5 February 2016, there was no pending review by the nominating employer of the decision to refuse the nomination application nor was there a pending review application of a decision not to approve the employer as a standard business sponsor.

17. Therefore, applying the reasoning in Ahmad's case , the Tribunal finds that the decision of the Department's delegate to refuse the applicant's subclass 457 visa application is not a Part 5-reviewable decision for the purposes of s.338(2)(d)(ii).

18. The Tribunal is further satisfied that the relevant decision of the delegate is not a Part 5-reviewable decision in relation to the applicant under any of the other subparagraphs of s.338 and r.4.02(4).

19. As the delegate’s decision is not reviewable under Parts 5 or 7 of the Act it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

    DECISION

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

    Karen Synon
    Member