Kato (Migration)

[2023] AATA 1763

Kato (Migration) [2023] AATA 1763 (18 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Kei Kato

CASE NUMBER:  1830465

HOME AFFAIRS REFERENCE(S):          BCC2018/2721498

MEMBER:Penelope Hunter

DATE:18 March 2023

PLACE OF DECISION:  Sydney

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

Statement made on 18 April 2023 at 11:41am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – no reviewable decision – no approved nomination – no pending review application – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 140E, 140GB, 338, 347
Migration Regulations 1994 (Cth), r 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 17 October 2018 for review of Temporary Skill Shortage (class GK) Temporary Skill Shortage (Short Term) (Subclass 482) 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 (Cth) (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 (Cth). Sections 338 and 411 of the Act and reg 4.02(4) of the Migration Regulations 1994 (Cth) 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 review a Temporary Skill Shortage (class GK) Temporary Skill Shortage (Short Term) (Subclass 482) visa is a decision prescribed of the purposes of s 338(2)(d) and only reviewable if an approved nomination in respect of the applicant has not ceased, or a review of a decision under either s 140E or s 140GB of the Act not to approve the sponsor is pending at the time of the decision, or the applicant is sponsored by an approved sponsor.

3. On 21 March 2023, the Tribunal wrote to the authorised recipient of the applicant and invited submissions as to whether a valid review application had been made.

4. As set out in the decision record of the delegate, submitted by the applicant to the Tribunal, the relevant nomination in respect of the applicant by her sponsoring employer GCS Group Australia Pty Ltd was not approved. There is no pending review application in respect of that nomination. There is also no evidence that the applicant is otherwise the subject of a valid sponsorship.

5. 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

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

   Penelope Hunter
   Member