Cho (Migration)

[2021] AATA 428

Cho (Migration) [2021] AATA 428 (16 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Yeonhwa Cho
Mr Hoyun Lee

CASE NUMBER:  1931278

DIBP REFERENCE(S):  BCC2019/3990137

MEMBER:Katie Malyon

DATE:16 February 2021

PLACE OF DECISION:  Sydney

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

Statement made on 16 February 2021 at 3:26 pm

CATCHWORDS
MIGRATION – Training (Class GF) visa – Subclass 407 (Training) – identified in approved nomination – sponsor’s applications for approval of nomination refused – no application for review – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 57, 65, 140E, 140GB, 338(2)(d)
Migration Regulations 1994 (Cth), r 4.02(1A)(b)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision made by a delegate of the Minister for Immigration dated 17 October 2019 to refuse to grant the applicants Training (Class GF) Subclass 407 visas under s.65 of the Migration Act 1958 (the Act).  A copy of the delegate’s decision was provided to the Tribunal.    

2. The review application was lodged with the Tribunal on 4 November 2019.  For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

3. The Tribunal has jurisdiction to review a decision under 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 as well as r.4.02 of the Migration Regulations 1994 (the Regulations) 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. Relevant to the circumstances of this case, s.338(2)(d) of the Act and r.4.02(1A)(b) of the Regulations provide that refusal of a Subclass 407 visa is reviewable if (with emphasis added):

   (a)the visa could be granted while the non-citizen is in the migration zone; and

   (b)the non-citizen made the application for the visa while in the migration zone; and

   (c)the decision was not made when the non-citizen:

   (i)was in immigration clearance; or

   (ii)had been refused immigration clearance and had not subsequently been immigration cleared; and

   (d)if the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

   (i)the non-citizen is, at the time the decision to refuse to grant the visa is made, identified in an approved nomination that has not ceased under the regulations; or

   (ii)a review of a decision under section 140E not to approve the sponsor of the non‑citizen is pending at the time the decision to refuse to grant the visa is made; or

   (iii)a review of a decision under section 140GB not to approve the nomination of the non‑citizen is pending at the time the decision to refuse to grant the visa is made; or

   (iv)except if it is a criterion for the grant of the visa that the non-citizen is identified in an approved nomination that has not ceased under the regulations — the non‑citizen is, at the time the decision to refuse to grant the visa is made, sponsored by an approved sponsor.

5. Paragraphs s.338(2)(a)-(c) of the Act are satisfied. The issue in this case is whether one of the subparagraphs of s.338(2)(d) of the Act are also satisfied such that the Tribunal has jurisdiction in relation to this matter.

   Background

6. A nomination application by the applicants’ prospective sponsor, YT Pty Ltd T/A Yi Dynasty (the Company), was refused by a delegate of the Minister for Immigration on 10 September 2019.  The Company did not seek review of that refusal in the Tribunal.  Rather, it lodged a second nomination application in respect of the applicants which was refused by the Department on 17 October 2019.  Shortly after refusal of the Company’s second nomination, the applicants’ Subclass 407 visa application was also refused on 17 October 2019. 

7. The Tribunal formed a preliminary view that the applicants’ review application may not be valid.  On 26 November 2019, the Tribunal wrote to the applicants through their representative and invited them to comment on the validity of their application for review.  The invitation indicated that the review application might not be valid as decisions which have no right of merits review are not decisions which can be reviewed by the Tribunal.

8. The applicants’ representative responded to the Tribunal’s invitation to comment on 3 occasions within the time period permitted.  In his submission of 27 November 2019, the representative submits that it has been is a ‘jurisdictional error’ that the applicants have no merits review rights.  The Tribunal notes it does not have jurisdiction to review matters for ‘jurisdictional error’.   

9. In addition, the Tribunal notes concerns raised by the representative in his submission dated 2 December 2019 regarding the failure of the Department to provide the applicants with an opportunity to comment on refusal of the Company’s second nomination application before it refused the applicants’ Subclass 407 visa application just 20 minutes later. The Tribunal accepts the Department has an obligation to put certain information to the applicants in accordance with s.57 of the Act: however, the requirement in s.57 of the Act does not impact the Tribunal’s jurisdiction in this matter.

10. For the following reasons, the Tribunal has found that it does not have jurisdiction in respect of this application.

    Consideration of evidence at the time of the decision to refuse to grant the visa

11. It is not in dispute that the Company did not seek review of the delegate’s decision to refuse its first nomination on 10 September 2019.  As set out in the delegate’s decision refusing the applicants’ Subclass 407 visa application (a copy of which was provided to the Tribunal) following refusal of its first nomination, the Company proceeded to lodge a second nomination on 4 October 2019.  It was refused on 17 October 2019.

12. As noted above, shortly after refusal of the Company’s second nomination 17 October 2019, the applicants’ Subclass 407 visa application was also refused. Accordingly, at the time of the decision to refuse to grant the visa, the applicants were not identified in an approved nomination that had not ceased. As a result, they do not meet the criterion in s.338(2)(d)(i) of the Act.

13. The Company is approved as a sponsor. Departmental records confirm its sponsorship is valid for 5 years from 19 August 2019 to 19 August 2025. Therefore, at the time of the decision to refuse to grant the visas, there was no pending application for review before the Tribunal of a decision not to approve the sponsor under s.140E of the Act. As such, the applicants do not satisfy the criterion in s.338(2)(d)(ii) of the Act.

14. At the time of the delegate’s decision to refuse to grant the applicants’ Subclass 407 visas, there was no pending review of a decision not to approve a nomination of the applicants under s.140GB of the Act. Consequently, the applicants do not satisfy the criterion in s.338(2)(d)(iii) of the Act.

15. The criterion in s.338(2)(d)(iv) of the Act is not applicable in the circumstances of this case as it is a requirement for grant of a Subclass 407 visa that the primary applicant has been nominated by an approved sponsor for a program of occupational training and the approved nomination has not ceased: cl.407.214(b) and (c) of Schedule 2 to the Regulations.

16. For the cumulative reasons outlined above, the delegate’s decision to refuse the applicants’ Subclass 407 visa application is not reviewable as the criteria set out in s.338(2)(d) of the Regulations were not met.

    Conclusion

17. 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

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

    Katie Malyon

    
    Member