Chen (Migration)

[2018] AATA 2218

Chen (Migration) [2018] AATA 2218 (21 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zhuo Chen
Ms Yanhong Wang

CASE NUMBER:  1806708

DIBP REFERENCE(S):  PNJ

MEMBER:Mary Sheargold

DATE:21 May 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 21 May 2018 at 5:35pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Sponsored by an approved sponsor at the time of review application – Standard business sponsor

LEGISLATION

Migration Act 1958, ss 5(1), 140E, 140GB, 337, 338, 347, 411, 412
Migration Regulations 1994, Schedule 2 cl 457.223, rr 1.03, 2.58, 2.76, 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 March 2018 for review of a refusal for a Subclass 457 visa. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

2. A decision to refuse to grant a Subclass 457 visa is a reviewable decision under Part 5 of the Migration Act 1958 (the Act) in certain circumstances. These are: if the applicant made the visa application while in the migration zone and, where it is a criterion for the grant of the visa that the applicant is ‘sponsored’ by an ‘approved sponsor’, 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: s.338(2)(d) of the Act and r.4.02(1A) of the Migration Regulations 1994 (the Regulations).

3. The term ‘sponsored’ is relevantly defined as including being identified in a nomination under s.140GB of the Act: s.337 of the Act and r.4.02(1AA) of the Regulations. The term ‘approved sponsor’ is defined in s.5(1) of the Act as a person who has been approved by the Minister under s.140E of the Act in relation to a class prescribed by r.2.58 of the Regulations and whose approval has not been cancelled or otherwise ceased to have effect, in relation to that class; or a person (other than a Minister) who is a party to a ‘work agreement’. A ‘work agreement’ is an agreement that satisfies the requirements prescribed by r.2.76 of the Regulations: s.5(1) of the Act.

4. 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) applies: Ahmad v MIBP [2015] FCAFC 182 (Katzmann, Robertson and Griffiths JJ, 16 December 2015) (Ahmad) at [95] - [96].

5. Accordingly, 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)).

6. On 7 May 2018, the Tribunal wrote to the applicants stating that at the time the review application was lodged, the applicants were not identified in a nomination under s.140GB of the Act that was approved or pending, and invited the applicants to respond to this information by 21 May 2018.

7. On 10 May 2018, the applicants’ representative responded to the Tribunal’s letter of 7 May 2018 and asked whether it would be acceptable for the applicants’ proposed sponsor to lodge a nomination application now.  On 11 May 2018, a representative of the Tribunal contacted the applicants’ representative and advised that at this stage, the case had been identified as having potential jurisdiction issues, and that the applicants had until 21 May 2018 to respond to the issues raised in the Tribunal’s letter dated 7 May 2018.  The applicants’ representative was advised that once a response was received, or the time frame to respond had lapsed, the case would be constituted to a Member to make a determination on the Tribunal’s jurisdiction.

8. At 11:02am on 21 May 2018, the Tribunal received an email from the applicants’ representative stating: “The applicant would like to seek [a] refund of the $1731 application charge.  Can you please process [a] refund to the card in which the payment was made from, and advise the likely refund processing time frame.”

9. The Tribunal has considered the representative’s email to the Tribunal and notes it does not assist in addressing the question of whether the Tribunal has jurisdiction in this case. The Tribunal has considered the material before it, and notes that at the time the review application was made on 13 March 2018, the visa applicants were not identified in a nomination under s.140GB by an approved sponsor as required by s.338(2)(d)(i) of the Act, nor is there a pending application for review of a decision not to approve a standard business sponsor under s.140E, or a pending review of a decision not to approve the nomination under s.140GB (as required by s.338(2)(d)(ii) of the Act). Therefore, the applicants cannot meet the requirements of s.338(2)(d) of the Act, and the Tribunal finds that the delegate’s decision is not a reviewable decision.

10. 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

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

    Mary Sheargold
    Member