GUZMAN (Migration)

[2017] AATA 1643

GUZMAN (Migration) [2017] AATA 1643 (28 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Kristine Joy GUZMAN
Ms Gresilita Liza CABRERA
Miss Ysabelle Lianne CABRERA
Mr Yale Luis CABRERA

CASE NUMBER:  1713523

DIBP REFERENCE(S):  BCC2016/4365665; CLF2017/46792

MEMBER:Wan Shum

DATE:28 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 28 August 2017 at 11:13am

CATCHWORDS

Migration – Training (Class GF) visa – Subclass 407 (Training) – Approved sponsor at the time of application for review – Nomination or sponsorship review pending – Prospective employer had not sought review of sponsorship – No jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29

Migration Act 1958, ss 57, 140E, 140GB, 338, 347, 411, 412

Migration Regulation 1994, r 4.02(4), Schedule 2, cl 407.214

CASES

Ahmad v MIBP [2015] FCAFC 182

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 26 June 2017 for review of a decision to refuse to grant a Subclass 407 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. A decision to refuse to grant a Subclass 407 visa may be reviewable if the applicant made the visa application while in the migration zone. However, where the applicant was sponsored or nominated as required by a criterion for the grant of the visa, the applicant must either be 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.

4. The applicants provided a copy of the decisions to refuse their visas. The decision record for the first named applicant explains that a decision was taken by the Department following the finalisation of two successive nominations because neither of the nominating organisations had been approved as a Temporary Activity sponsor or a Training and Research sponsor. For an applicant who claims to be sponsored but not by a Commonwealth agency, a nomination of a program of occupational training in relation to the applicant must have been approved under s.140GB of the Act: cl.407.214 of Schedule 2 to 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. The first named applicant had most recently been named in a nomination lodged on 23 March 2017 by Frangipani Gentle Care Group. However this application was unsuccessful, as the sponsorship application had been refused on 31 May 2017. It was submitted that the first named applicant was not given an opportunity to provide comments in respect of this nomination. It appears from the decision record that the delegate made the decision on the basis that an earlier nomination lodged by Meaningful Care Pty Ltd had been unsuccessful, and that the nomination by Frangipani Gentle Care Group was in response to the natural justice letter sent following that decision. When the delegate made the decision to refuse the first named applicant the visa, no evidence had been provided that she had been identified in a nomination by an approved sponsor. The representative considers that the first named applicant should have been given an opportunity to provide evidence of a new nomination following the refusal in respect of Frangipani Gentle Care Group. However, the Tribunal is considering whether it has jurisdiction and not whether the procedural requirements under s.57 of the Act were met. There was no evidence that the first named applicant was named in a nomination or sponsorship application that is pending when she lodged this application for review or within the time for applying for review.

7. The applicants have thus not been identified in a nomination application that had not yet been determined. Nor is there evidence that a prospective employer had sought review of the decisions to not approve the sponsorship or nomination within the period allowed. The requirements of s.338(2)(d) have thus not been met.

8. 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

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

   Wan Shum
   Member