Hussain (Migration)

[2018] AATA 843

Hussain (Migration) [2018] AATA 843 (7 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Naseer Hussain

CASE NUMBER:  1802337

DIBP REFERENCE(S):  BCC2017/168483

MEMBER:Mary Sheargold

DATE:7 March 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 07 March 2018 at 5:41pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Requirement to be sponsored at the time of review – Applicant not sponsored

LEGISLATION
Migration Act 1958, ss 5(1), 65, 140E, 140GB, 338, 347, 411, 412
Migration Regulations 1994, rr 1.03, 4.02, 2.58, 2.76, Schedule 2, cl 457.223(4)(a)

CASES
Ahmad v MIBP [2015] FCAFC 182

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 30 January 2018 for review of a decision of a delegate of the Minister for Immigration, dated 9 January 2018, to refuse to grant a Temporary Work (Skilled) visa 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 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 a Subclass 457 visa is a reviewable decision under Part 5 of the Migration Act 1958 (the Act) in certain circumstances. These are: if the applicant made the visa application while in the migration zone and, where it is a criterion for the grant of the visa that the applicant is ‘sponsored’ by an ‘approved sponsor’, 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; or a person (other than a Minister) who is a party to a ‘work agreement’. A ‘work agreement’ is an agreement that satisfies the requirements prescribed by r.2.76 of the Regulations: s.5(1) of the Act.

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. On 31 January 2018, the Tribunal wrote to the Applicant and raised its concerns that the visa application was not valid because the Applicant was not identified in a nomination under s.140GB of the Act that was approved or pending. The Applicant was invited to comment on this by 14 February 2018. The Tribunal notes that at the date of this decision, the Applicant had not provided any response to the Tribunal’s letter.

7. 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.

8. 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).

9. 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

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

    Mary Sheargold
    Member