BHUSAL (Migration)

[2018] AATA 2066

BHUSAL (Migration) [2018] AATA 2066 (11 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr RAVI BHUSAL

CASE NUMBER:  1807517

DIBP REFERENCE(S):  BCC2017/2073090

MEMBER:Alan McMurran

DATE:11 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 11 May 2018 at 11:15am

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – No sponsorship or nomination – No Tribunal-reviewable decision

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 140GB, 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 20 March 2018 for review of a decision to refuse to grant a Temporary Business Entry (Class UC) visa. 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. A decision to refuse to grant a Temporary Business Entry (Class UC) visa is reviewable if the applicant made the visa application while in the migration zone and 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, review of the sponsorship decision is pending but is not reviewable in the circumstances of this case because the applicant was not sponsored or nominated as required by a criterion for the grant of the visa.

4. The circumstances of this case reveal 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. The Tribunal has had regard to the Department’s file which shows that the visa application the subject of the review was made on 12 June 2017, and the approved nomination by AT &j Pty Ltd (the sponsor) expired on 12 August 2017.The nomination was not renewed by the sponsor.

5. The Tribunal sent a letter to the applicant on 20 April 2018 inviting comment on the fact there was no nomination approved or pending, and no application for review of either a decision not to approve the sponsor or not to approve a nomination. No response was received by the due date, 4 May 2018, or at all.

6. 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

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

   Alan McMurran
   Member