Lee (Migration)

[2018] AATA 2827

Lee (Migration) [2018] AATA 2827 (14 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Yunhye Lee
Mr Sanghyun Youn

CASE NUMBER:  1814442

DIBP REFERENCE(S):  BCC2018/967674

MEMBER:Hugh Sanderson

DATE:14 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 14 June 2018 at 12:26pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Sponsored by an approved sponsor – Fresh nomination application lodged – No Tribunal-reviewable decision – No jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 338, 347, 411, 412
Migration Regulations 1994, r 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 18 May 2018 for review of to refuse the applicants the grant of a Subclass 457 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.

3. Section 338(2)(d) provides that a decision to refuse to grant a non-citizen a visa is reviewable decision if the following provisions apply:

   where it is a criterion for the grant of the visa that the noncitizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

   i.the noncitizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or

   ii.an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.

4. The Tribunal wrote to the applicant on 29 May 2018 noting that as the applicant was not the subject of an approved sponsorship and that as there was no pending review of a decision to refuse a sponsorship application the Tribunal may find that it did not have jurisdiction to consider the application. The applicant’s agent responded on 5 June 2018 arguing that a fresh nomination application had been filed by the sponsor on 24 April 2018 and as there was a pending nomination application the Tribunal would have jurisdiction.

5. The Subclass 457 visa is a temporary visa prescribed for the purposes of s.338(2). Accordingly, in order to be a valid review application the applicant must be sponsored by an approved sponsor or there must be an application for review of the decision not to approve the sponsorship application.

6. At the time of the review application, the applicant was not sponsored by an approved sponsor. Accordingly, the applicant does not meet the requirements of s.338(2)(d)(i).

7. The nomination application of the applicant sponsor (Elleo Group Holdings Pty Ltd) was refused by the Department on 29 March 2018. There is no information before the Tribunal that any application for a review of that decision to refuse the nomination application has been made by the sponsor. Accordingly, the applicant does not meet the requirements of s.338(2)(d)(ii).

8. The Tribunal accepts that Elleo Group Holdings Pty Ltd has filed a new application with the Department seeking approval to sponsor the applicant. That is not, however, an application to review the decision not to approve the sponsor but is a fresh application. The fact that a new application has been made by the sponsor does not meet the requirements of s.338(2)(d).

9. As the applicant at the time the review application was filed is not sponsored by an approved sponsor and as no application for a review of a decision not to approve the sponsor has been made, the applicant does not meet the requirements of s.338(2)(d).

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.

    Hugh Sanderson
    Member