GOHIL (Migration)

[2018] AATA 1130

GOHIL (Migration) [2018] AATA 1130 (19 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Shnehalben Dineshbhai GOHIL

CASE NUMBER:  1807851

DIBP REFERENCE(S):  BCC2016/1378399

MEMBER:Kate Timbs

DATE:19 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 19 April 2018 at 11:33am

CATCHWORDS
Migration – Temporary Work (Skilled) visa – Subclass 457 – Applicant not subject of an approved sponsorship nomination – Decision not reviewable

LEGISLATION
Migration Act 1958, ss 140GB, 338
Migration Regulations 1994, r 4.02 Schedule 2 cl 457.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Ms Gohil applied for a Temporary Work (Skilled) (subclass 457) visa on 6 April 2016. A delegate of the Minister of Immigration decided to refuse to grant the visa on 8 March 2018. Ms Gohil applied for review of that decision on 22 March 2018.

2. The relevant law is the Migration Act 1958 and the Migration Regulations 1994. Section 338 of the Act and regulation 4.02 of the Regulations set out the decisions (other than those related to protection visas) that the Migration and Refugee Division of the Tribunal may review.

3. The delegate refused to grant Ms Gohil a visa on the basis that she did not meet the requirement that a nomination of an occupation in relation to her has been approved under section 140GB of the Act (clause 457.223 of Schedule 2 to the regulations).

4. A decision to refuse to grant a subclass 457 visa is reviewable under section 338(2) and regulation 4.02(4) if it meets relevant criteria. In this case, under section 338(2)(d), the decision is reviewable if:

   ·a relevant nomination is approved when she applied for review; or

   ·an application for review of a decision to refuse to approve a relevant nomination is pending when she applied for review.

5. The Tribunal Registry wrote to Ms Gohil on 3 April 2017 advising that it had not record of a relevant nomination or application for review of a decision to refuse to approve a nomination. She did not respond to the correspondence.

6. The Tribunal is satisfied that when she applied for review she was not the subject of an approved nomination and that there was no pending application for review of a decision to refuse to approve a nomination in relation to her. She does not meet the criteria in section 338(2)(d). The delegate’s decision is therefore not reviewable and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Kate Timbs
   Member