JEON (Migration)

[2019] AATA 54

JEON (Migration) [2019] AATA 54 (10 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sangwan JEON
Mrs Jinah KIM

CASE NUMBER:  1832881

DIBP REFERENCE(S):  BCC2017/66006

MEMBER:Denise Connolly

DATE:10 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 10 January 2019 at 11:51am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – no Tribunal-reviewable decision – sponsored by an approved sponsor – approved nomination of an occupation ceased – no jurisdiction      

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 5, 140, 338, 347, 411, 412
Migration Regulations 1994, Schedule 2 cl 457.223(4)(a), rr 1.03, 2.58, 4.02

CASES

Ahmad v MIBP [2015] FCAFC 182

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 8 November 2018 for review of a decision to not grant the applicants Temporary Business Entry (Class UC) visas.  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 refusing to grant a Temporary Business Entry (Class UC) 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 sponsorship or nomination application has been made but, at the time the review application is made, review of the sponsorship or nomination application decision is pending.

3. 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 was 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].

4. Therefore such a decision is only reviewable where, at the time the review application is made, either:

   • the 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 ceased (s.338(2)(d)(i)); or
   • there is a pending application for review of a decision not to approve the sponsor under s.140E, or a pending review of a decision not to approve the nomination under s.140GB (s.338(2)(d)(ii)).

5. The applicants provided to the Tribunal a copy of the delegate’s decision record. When making the visa application the applicants indicated the first named applicant (the applicant) was sponsored by JIN84 Pty Ltd. The delegate records that JIN84 did not have an approved nomination for the applicant at time of primary decision.  The delegate refused to grant the visas because the applicant was not the subject of an approved nomination.

6. The Tribunal has checked the Department’s electronic records which confirm that at the time of this review application there was not an approved nomination of which the applicant was the subject. Nor was there a Subclass 457 nomination application pending.  It has also checked the records of the Department and Tribunal confirming that there is no evidence to suggest an approved sponsor has since, prior to the review application being lodged, made another Subclass 457 nomination application sponsoring either of the applicants. Nor are there any relevant matters with a review pending.

7. The Tribunal wrote to the applicants on 6 December 2018 seeking their comments on its preliminary view that it does not have jurisdiction. The applicants did not respond.

8. The review application was lodged on 8 November 2018.  The Department’s records confirm that a nomination of which the applicant was the subject had been approved on 21 September 2017 but it had ceased by the time the applicants lodged this application for review. The sponsor had made another nomination application (which was refused and the subject of a review application) but it was nominating the applicant for a Subclass 187 visa, not the Subclass 457 visa the subject of this review application. The records of the Department and the Tribunal confirm that on the date the review application was lodged the applicant was not identified in a nomination under s.140GB by an approved sponsor, or a nomination application under s.140GB that had not yet been determined, or an approved nomination that had not ceased: s.338(2)(d)(i).  There is no pending application for review of a decision not to approve the sponsor under s.140E, nor a pending application for review of a decision not to approve a related nomination under s.140GB: s.338(2)(d)(ii).

9. Therefore the decision is not reviewable.

10. 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

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

    Denise Connolly
    Member