Kim (Migration)

[2019] AATA 3523

Kim (Migration) [2019] AATA 3523 (12 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Boheung Kim

CASE NUMBER:  1809877

DIBP REFERENCE(S):  BCC2017/983160

MEMBER:Bridget Cullen

DATE:12 March 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 12 March 2019 at 11:48am

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 – no jurisdiction      

LEGISLATION

Migration Act 1958, ss 5, 140, 337, 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 9 April 2018 for review of a decision made by a Delegate of the Department of Home Affairs to refuse to grant a Temporary Business Entry (class UC) Visa. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

2. 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 20 February 2019, the an officer of the tribunal wrote to the following to the applicant, through their registered migration agent:

   “I am of the view that your application for review is invalid. At the time you applied for review, you were not identified in a nomination under s.140GB of the Migration Act 1958 that was either approved or pending. Nor was there a valid and pending application for review before us of a decision not to approve the sponsor under s.140E, or of a decision not to approve the nomination under s.140GB of the Act. However this is a matter which must be determined by a Member.”

7. The Tribunal provided the applicant a due date of 6 March 2019 for any comments on the validity of application they wished to make. To date, the Tribunal has not received any such comment.

8. 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.

9. 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

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

    Bridget Cullen
    Member