Cai (Migration)

[2018] AATA 3131

Cai (Migration) [2018] AATA 3131 (5 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Peijie Cai

Mrs Peijie Cai
Mr Lingbo Fang
Miss Annie Fang
Miss Connie Fang

CASE NUMBER:  1817269

DIBP REFERENCE(S):  BCC2017/801039 PNJ

MEMBER:Warren Stooke AM

DATE:5 July 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 05 July 2018 at 9:39am

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – no Tribunal-reviewable decision – sponsored by an approved sponsor – no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 5, 140, 338, 347, 411, 412
Migration Regulations 1994, r 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 13 June 2018 for review of a 457 visa application with GF Constructions Pty Ltd. 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 but not a decision where the applicant is not identified in the nominating sponsor’s application as a nominee. Such circumstances are not reviewable under Part 5 (migration) or Part 7 (protection).

3. For the decision to be reviewable under s.338(2)(d)(i) by the Tribunal, 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 visa is made. For review applications made on or after 14 September 2009, the meaning of ‘sponsored’ includes being identified in a nomination under section 140GB of the Act.^[1]

4. 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. In that judgement the Full Federal Court held that for the purposes ofs338(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. Therefore, the Tribunal has jurisdiction to review a decision to refuse a subclass 457 visa application under s.338(2)(d), if, at the time the review application was lodged, one of the following circumstances are met:

   a)the visa applicant is identified with an approved nomination by an approved sponsor (unders338(2)(d)(i));

   b)the visa applicant is identified in a pending nomination application by an approved sponsor that is under consideration by the Department (unders338(2)(d)(i));

   c)there is a pending application for review of a decision not to approve the sponsor under s. 140E (under s.338(2)(d)(ii)); or

   d)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)).

5. As outlined in its letter inviting submissions on jurisdiction, sent to the applicant on 20 June 2018, the evidence before the Tribunal indicates that at the time the review application was lodged on 13 June 2018, the applicant was not identified in a nomination under s.140GB of the Act that was approved or pending with the Department, nor was there a pending application for Tribunal review of either a decision not to approve a sponsor under s.140E, or a decision not to approve a nomination application under s.140GB. The Tribunal allowed until 4 July 2018 for a response.

6. On 3 July 2018 the applicant responded by submitting that the Tribunal has jurisdiction because the applicant is sponsored by an approved sponsor in the following terms:

   “Re: Invitation to comment on review application validity.

   I would like to make comments on the validity of my application for review.

   On 24 May 2018, I was notified by the Department of Home Affairs that my subclass 457 visa application was refused (Application TRN: EGODZJU9X9). Within the required time frame 21 days,I made my merit review application to AAT on 13 June 2018.

   I believe that my application is valid.

   On the letter of refusal notification (attached for your reference), it is quoted that “you may become entitled to apply to the Administrative Appeals Tribunal (AAT) for merits review of this decision if within 21 calendar days after the day on which you are taken to have received this letter, you are sponsored by an approved sponsor, or an application for merits review of a decision not to approve the sponsor is pending.”

   I am sponsored by an approved sponsor. My sponsor GF CONSTRUCTION PTY LTD has been approved as a Standard Business Sponsorship‐Aus Business since 09/08/2017, and its sponsorship will be valid until 09/02/2019. Please refer to attached “Sponsorship Approval Notice” for my sponsor for detail.

   As I am sponsored by an approved sponsor, I am entitled to seek review. And I made the review application within 21 days, my application should be considered to be valid.

   Should you have any other query, please do not hesitate to contact me. Thank you very much for your time.”

7. On the basis of the material before the Tribunal, at the time the application to review the visa refusal decision was made on 24 May 2018, the applicant was not identified in either an approved or a pending nomination by an approved sponsor.

8. It follows that, 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 reviewable decision for the purposes of s.338(2)(d)(i).

9. Further, at the time the review application was lodged, there was no pending review by GF Constructions Pty Ltd regarding any nomination in relation to the applicant.

10. Therefore, also 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 reviewable decision for the purposes of s.338(2)(d)(ii).

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

12. 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

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

    Warren Stooke AM
    Member

    ^[1] Section 337 of the Act and subregulation 4.02(1AA) of the Regulations