Feng (Migration)

[2017] AATA 967

Feng (Migration) [2017] AATA 967 (7 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Yi Feng

CASE NUMBER:  1709524

DIBP REFERENCE(S):  BCC2016/1135936

MEMBER:Glen Cranwell

DATE:7 June 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 07 June 2017 at 8:53am

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Nomination by sponsor lodged after review application date – No jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29

Migration Act 1958, ss 65, 140E, 140GB, 338, 347, 411, 412

Migration Regulations 1994, Schedule 2, r 4.02(4)

CASES

Ahmad v MIBP [2015] FCAFC 182
Kandel v MIBP [2015] FCCA 2013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 10 April 2017, to refuse to grant Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).  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 to refuse to grant an applicant a Temporary Business Entry (Class UC) visa is reviewable if the applicant made the visa application while outside the migration zone, and the applicant was sponsored or nominated as required by a criterion for the grant of the visa; or 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 has been made but at the time the application for review of the visa refusal is made, review of the sponsorship decision is pending. 

3. On 11 May 2017 the Tribunal wrote to the applicant inviting comment on the issue of validity of the application.  No response was received, but the Tribunal notes that the following document was lodged with the review application:

   ·a nomination of the applicant by Seapacx Operations Pty Ltd was lodged on 1 May 2017.

4. The Department’s ISCE records indicate that, as at the time the review application was lodged on 1 May 2017, an application for approval as a standard business sponsor by Seapacx Operations Pty Ltd had yet to be determined by the Department.  The nomination application lodged on 1 May 2017 had also not been determined.

5. The Tribunal has considered whether there is jurisdiction in this application. Sections 338(2) states as follows:

   The decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a noncitizen a visa is a Part 5-reviewable decision if:

   …

   (d)  where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

   (i) the non-citizen is sponsored by an approved sponsor at the time of the application to review the decision to refuse to grant the visa is made; or

   (ii) an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.

   “Sponsored by an approved sponsor”: No jurisdiction under section 338(2)(d)(i) of the Act

6. The Tribunal finds that there was no approved nomination in respect of the applicant by Seapacx Operations Pty Ltd at the time the application for review was lodged.

7. The Tribunal has had regard to the decision of the Federal Circuit Court in Kandel v MIBP [2015] FCCA 2013. In that case, the Court found that the Tribunal had jurisdiction where an approved sponsor lodged a further application for approval of a nominated occupation shortly before the review application was lodged with the Tribunal. In the present matter, however, the further nomination application was lodged by Seapacx Operations Pty Ltd, which was not an approved sponsor at the time the review application was lodged.

8. The Tribunal finds that at the time the application for review was lodged, the applicant was not sponsored by an approved sponsor as required by s.338(2)(d)(i), even taking into account the wider interpretation of a person being 'sponsored' set out in Kandel. 

   “Pending application for review of a decision not to approve the sponsor”: No jurisdiction under section 338(2)(d)(ii) of the Act. 

9. The Tribunal finds that, at the time the application for review was lodged, there was no decision by the Minister not to approve Seapacx Operations Pty Ltd as a standard business sponsor under s.140E. Nor was there a decision not to approve the nomination Seapacx Operations Pty Ltd of the applicant under s.140GB. Therefore there was no pending application for review of a decision not to approve Seapacx Operations Pty Ltd.

10. On the basis of Ahmad v MIBP [2015] FCAFC 182, the Tribunal finds that the decision is not reviewable under s.338(2)(d)(ii) as there was no pending review of a decision under s.140E or s.140GB.

    Conclusion

11. The Tribunal finds that the decision of the delegate was not an 'MRT-reviewable decision' under any of the other subparagraphs of s.338 and r.4.02(4) and hence not reviewable by this Tribunal. 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

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

    Glen Cranwell
    Member