HARPREET SINGH (Migration)

[2018] AATA 5958

HARPREET SINGH (Migration) [2018] AATA 5958 (14 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr - HARPREET SINGH
Mrs KULWINDER KAUR

CASE NUMBER:  1811703

DIBP REFERENCE(S):  BCC2016/3679863

MEMBER:R. Skaros

DATE:14 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 14 June 2018 at 9:18am

CATCHWORDS
MIGRATION – Temporary Work (Skilled) visa – Subclass 457 – validity of the application for review – sponsor’s nomination application refused – no pending application for review of a decision – no pending review of refusal of nomination – applicant not sponsored by approved sponsor – delegate’s decision not reviewable – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 140E, 140GB, 338(2)(d)(i), 338(2)(d)(ii)

Migration Regulations 1994 (Cth), r 4.02(4), Schedule 2, cl 457.223(4)(a)

CASE

Ahmad v MIBP [2015] FCAFC 182

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 24 April 2018 for review of a decision to refuse the grant of a Temporary Work (Subclass 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. A decision to refuse a Subclass 457 visa is reviewable if 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: s.338(2)(d) of the Act and r.4.02(1A) of the Migration Regulations 1994 (the Regulations).

3. The term, ‘sponsored’, is relevantly defined as including being identified in a nomination under s.140GB of the Act: s.337 of the Act and r.4.02(1AA) of the Regulations. The term, ‘approved sponsor’, is defined in s.5(1) of the Act as a person who has been approved by the Minister under s.140E of the Act in relation to a class prescribed by r.2.58 of the Regulations and whose approval has not been cancelled or otherwise ceased to have effect, in relation to that class.

4. For an applicant who claims to be nominated by a standard business sponsor, a nomination of an occupation in relation to the applicant must have been approved under s.140GB of the Act and the nomination made by a person who was a ‘standard business sponsor’ at the time the nomination was approved: cl.457.223(4)(a) of Schedule 2 to the Regulations. A ‘standard business sponsor’ is a person who is an ‘approved sponsor’; and is approved as a sponsor in relation to the standard business sponsor class by the Minister under s.140E(1) of the Act: ss.5 and 140E of the Act and rr.1.03 and 2.58 of 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 applicant applied for the 457 visa on the basis of a nomination by Shine Transport Pty Ltd (the sponsor). That nomination was refused by the Department on 2 March 2018. The sponsor did not apply for review of the decision not to approve that nomination in relation to the applicant.

7. Information on the Department’s electronic records indicates that the sponsor lodged a 482 short term nomination with the Department on 27 March 2018 in which the applicant was identified. Although the 482 nomination was pending at the time of the application for review, the Tribunal formed the preliminary view that it may not have jurisdiction in this case because the pending nomination was not a nomination on which the applicant could rely to meet the requirements in cl.457.223(4)(a) for the grant of the visa.

8. On 17 May 2018 the Tribunal wrote to the applicants and invited them to comment on the validity of the application for review. The invitation was sent to the authorised representative at the email address provided in the application for review form. The invitation stated that the comments were due by 31 May 2018. To date the Tribunal has not received a response from the applicants or their representative.

9. There is no information before the Tribunal to suggest that 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. In the circumstances, the application is not reviewable under s.338(2)(d)(ii) of the Act.

10. In relation to s.338(2)(d)(i), the Tribunal acknowledges that at the time of the application for review the applicant was the subject of a pending nomination under s.140GB of the Act, however, as that nomination was not lodged until after 18 March 2018, it cannot be relied upon by the applicant to meet the requirements in cl.457.223(4)(a) for the grant of a Subclass 457 visa.  A nomination of an occupation made on or after 18 March 2018 can only be made in relation to the holder of a Subclass 457, Subclass 482 visa or an applicant or proposed applicant for a Subclass 482 visa: r.2.72(1)(b). The applicant in this case ceased to hold a 457 visa on 8 November 2016, the pending nomination therefore is not for the purpose of supporting the continued holding of a 457 visa and nor is it capable for supporting the grant of a Subclass 457 visa application.

11. The Tribunal considers that for the review application to be valid under s.338(2)(d)(i), the applicant, at the time of the review application, had to have been identified in an approved or pending nomination under s.140GB of the Act that is capable of supporting the grant of the Subclass 457 visa.  As the nomination made on 27 March 2018 was not such a nomination, the Tribunal finds that, at the time of the review application, the applicant was not sponsored. It follows that the application is not reviewable under s.338(2)(d)(i) of the Act.      

12. The Tribunal finds that, at the time the application to review the decision to refuse to grant the visa was made, the applicant was not ‘sponsored’ by an ‘approved sponsor’ and no review of a decision not to approve the sponsor was pending. Accordingly, the requirements of s.338(2)(d) were not met.

13. As such, the delegate’s decision in the circumstances is not a reviewable decision under s.338(2) or under any of the other subparagraphs of s.338 and r.4.02(4).

    DECISION

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

    R. Skaros
    Member