ESEGINE (Migration)

[2017] AATA 2817

ESEGINE (Migration) [2017] AATA 2817 (22 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ochuko Benjamin ESEGINE
Mrs Oluwakemi Mercy IBITOYE and              Miss Grace Ifeoluwa ESEGINE 

CASE NUMBER:  1703837

DIBP REFERENCE(S):  BCC2015/3596619

MEMBER:Ian Berry

DATE:22 December 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 22 December 2017 at 12:10pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Not a reviewable decision – No approved sponsor – No pending application for review

LEGISLATION
Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 140E, 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 3 March 2017 for review of the refusal for the granting of a UC 457 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. The applicant’s sponsor applied for the nomination position the subject of the UC 457 visa.  That sponsor’s application for standard business sponsor was refused by the Minister’s delegate.  The time to review that refusal has expired and the applicant’s sponsor did not request a review of that decision. 

4. The refusal of the applicant’s UC 457 visa is not reviewable in the circumstances of this case because the applicant’s sponsor had its application for the nomination of a UC 457 position refused and did not lodge an application requesting a review of that decision.

5. Consequently, on 20 January, 2017, the delegate by letter dated that same date, informed the applicant that his prospective employer does not have an approved nomination and the result is that the application is unlikely to be successful.  The applicant was given 28 days within which to respond.  The applicant did not respond.

6. On 20 February, 2017, the Minister’s delegate refused to grant the UC 457 visa for the reason that the applicant was not the subject of an approved nomination.

7. The Tribunal by letter dated 19 September, 2017 informed the applicant that it was of the view the applicant’s application is invalid. 

8. The applicant was given until 3 October, 2017 to respond to the Tribunal.  The applicant did not respond by that date or at any time.

9. At the time the review application was lodged, the applicant was not identified in a nomination under s.140GB of the Act by an approved sponsor, nor was there a pending application for review before the Tribunal of wither a decision not to approve the sponsor under s.140E or a decision not to approve the nomination under s.140GB of the Act, the Tribunal is of the view 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.

    Ian Berry
    Member