Caddeo (Migration)

[2019] AATA 135

Caddeo (Migration) [2019] AATA 135 (22 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Camilla Caddeo
Mr David Anthony Whoriskey

CASE NUMBER:  1816612

DIBP REFERENCE(S):  BCC2017/1836581

MEMBER:Catherine Carney-Orsborn

DATE:22 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 22 January 2019 at 2:42pm

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 1.03, 2.58, 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 6 June 2018 for review of a decision to refuse to grant the applicants 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. A decision refusing 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 or nomination application has been made but at the time the application for review of the visa refusal is made, review of the sponsorship or nomination application decision is pending.

3. For an applicant who claims to be nominated by a standard business sponsor, a nomination of an occupation in relation to the applicant must have been approved under s.140GB of the Act and the nomination made by a person who was a ‘standard business sponsor’ at the time the nomination was approved: cl.457.223(4)(a) of Schedule 2 to the Regulations. A ‘standard business sponsor’ is a person who is an ‘approved sponsor’; and is approved as a sponsor in relation to the standard business sponsor class by the Minister under s.140E(1) of the Act: ss.5 and 140E of the Act and rr.1.03 and 2.58 of the Regulations. It is therefore a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor and s.338(2)(d). 

4. Therefore such a decision is only reviewable where, at the time the review application is made, either:

   ·     the visa applicant is identified in a nomination under s.140GB by an approved sponsor. This includes a nomination application that has not yet been determined, or an approved nomination, but does not include a nomination that has been refused with no review pending of that refusal, or a nomination that has expired (s.338(2)(d)(i)); or

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

5. The first named applicant (the applicant) applied for the visa on the basis of a nomination by Monello Industries Pty Ltd. The Department’s records indicate that the delegate refused to approve the nomination application, of which the applicant was the nominee, on 16 May 2018.  Monello Industries Pty Ltd did not apply to the Tribunal for review of the Department’s decision to refuse the nomination application.

6. Department and Tribunal records indicate that at the time of this review application, 6 June 2018, the applicant was not the subject of a nomination application not yet determined, or of an approved nomination under s.140GB, and there was no pending review of the nomination refusal, and there was no pending application for review of a decision not to approve the standard business sponsor under s.140E.

7. On 25 June 2018 the Tribunal wrote to the applicants inviting them to comment by 9 July 2018 on its preliminary view that the review application was not valid due to the above reason

8. On 8 July 2018 the applicants responded in writing.  They indicated they would like to appeal the decision as they wanted to stay in Australia and they have abided by the rules.

9. On 5 November 2018 a second letter was sent to the applicants requesting them to comment on the validity of the review by 19 November 2018.

10. On 29 November 2018 the Tribunal received an email from the first named applicant.  She stated that her relationship with the second named visa applicant had broken down.  She said as she had left that relationship she was not receiving any correspondence from the Tribunal.  She provided new contact details for herself.

11. On 10 December 2018 the Tribunal resent the natural justice letter referred to above in paragraph 7 and invited the first named applicant to comment by 24 December 2018.

12. On 23 December 2018 the first named applicant asked for an extension of the time to provide comment.  The Tribunal allowed an extension of time until 16 January 2019.

13. The applicants did not provide any further information or evidence.

14. The information provided by the applicants does not demonstrate that s.338(2)(d) has been met.   At the time of the application for review the applicant was not identified in a nomination by an ‘approved sponsor’ as required by s.338(2)(d)(i) nor 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, as required by s.338(2)(d)(ii). Therefore the decision is not reviewable.

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.

    Catherine Carney-Orsborn
    Member