Kawai (Migration)

[2017] AATA 1482

Kawai (Migration) [2017] AATA 1482 (25 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Takahiro Kawai

CASE NUMBER:  1716252

DIBP REFERENCE(S):  BCC2017/863936 CLF2017/55875

MEMBER:Ian Berry

DATE:Friday, 25^th August 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 25 August 2017 at 5:08pm

CATCHWORDS

Migration – Training (Class GF) visa – Subclass 407 (Training) – Evidence of health insurance – No approved sponsor at the time of application for review – No nomination or sponsorship review pending

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29

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

Migration Regulation 1994, Schedule 2, cl 407.216

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.    An application was made to the Tribunal on 26 July 2017 for review of the decision of a delegate of the Minister for Immigration, dated 5 July 2017, to refuse to grant a subclass 407 Training 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 to grant an applicant a subclass 407 training visa is reviewable if the applicant made the visa application while within the migration zone, and the applicant was sponsored or nominated as required by a criterion for the grant of the visa; or the applicant made the visa application while in the migration zone and the applicant is sponsored by an approved sponsor at the time the application for review of the visa refusal is made on 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.

3.    Reference to the “applicant” includes both the applicant and the applicant’s migration agent who was on record in this proceeding.

4.    The delegate was neither satisfied with the applicant having made adequate arrangements for health insurance as required by regulation 407.216 of the Migration Regulations 1994, nor whether the visa applicant had lodged a valid application.

5.    On 2 May 2017, the department requested, by email to the applicant, to provide proof that adequate arrangements had been put in place by the visa applicant as to health insurance as required by 407.216 of the Migration Regulations 1994.

6.    By Departmental letter dated 5 July 2017, the applicant was advised of his application for the subclass 407 visa, had been refused.  The applicant was invited to have this decision reviewed if the applicant had an approved sponsor or the approved sponsor is seeking a merits review of the refusal of the sponsorship.

7.    On 26 July 2017, the applicant applied for a review of the Department’s decision.

8. By letter from this Tribunal dated 4 August 2017, the applicant was informed that his application was invalid, and is not reviewable in the circumstances of this case because he was neither identified (at the time of the lodgement of his review application) as having a sponsor nor identified as being a nominee of an approved sponsor. For his application to be valid then at the time of the review application lodgement, the applicant should be identified in a sponsorship, that was approved or pending, as contemplated by section 140GB of Migration Act 1958.

9.    By letter dated 4 August 2017, the applicant was given the opportunity to respond to the assertion that his application was invalid.  The applicant was requested to respond with any comments by 18 August 2017.  He did not do so.

1. 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

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

Ian Berry
Member