Lian (Migration)

[2019] AATA 4616

Lian (Migration) [2019] AATA 4616 (9 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jia-Cheng Lian
Mrs Yee-Ching Liang

CASE NUMBER:  1835624

DIBP REFERENCE(S):  BCC2018/2874445

MEMBER:Denise Connolly

DATE:9 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 09 January 2019 at 5:30pm

CATCHWORDS
MIGRATION – Training (Class GF) visa – Subclass 407 – temporary activities sponsor – sponsor’s sponsorship application refused – no application for review of refusal – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 140E(1), 140GB, 338(2)(d)

Migration Regulations 1994 (Cth), r , Schedule 2, cl

CASE

Ahmad v MIBP [2015] FCAFC 182

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 4 December 2018 for review of a decision to refuse to grant Training (Class GF) 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 to refuse to grant a Subclass 407 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 an approved sponsor, a nomination of a training position 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 ‘temporary activities sponsor’ at the time the nomination was approved: cll.407.213(b) and 407.214(b) of Schedule 2 to the Regulations. A ‘ ‘temporary activities sponsor’ is a person who is an ‘approved sponsor’; and is approved as a sponsor in relation to the temporary activities 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 so s.338(2)(d) applies. The Tribunal is of the view the case law addressing these requirements (Ahmad v MIBP [2015] FCAFC 182 (Katzmann, Robertson and Griffiths JJ, 16 December 2015) (Ahmad) at [95] - [96]), while concerning its jurisdiction in Subclass 457 Class UC visa cases, is applicable because the requirements of s.338(2)(d) are the same for both visa classes, and both require nomination by an ‘approved sponsor’.

4. Therefore 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 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 application for review of a decision not to approve the nomination under s.140GB (s.338(2)(d)(ii)).

5. Information before the Tribunal indicates that the first named applicant (the applicant) applied for the Subclass 407 visa on the basis of a nomination by CFC 1PSQ Parramatta Pty Ltd. The sponsor’s sponsorship application was refused. The associated nomination was otherwise finalised. There is no evidence before the Tribunal to indicate that CFC 1PSQ Parramatta Pty Ltd applied for review of the refusal. Departmental records do not indicate that the applicant was the subject of a pending nomination made under s.140GB of the Act at the time of the review application. 

6. The applicants were invited to comment on the validity of the application for review. In response, on 19 December 2018, the second named applicant called the Tribunal and stated that her agent was going to respond. She made enquiries about her bridging visa. The Tribunal notes a migration agent has not been appointed. No other submissions were received.

7. The Tribunal finds that at the time of the application for review, the applicant was not the subject of a pending or approved nomination made under s.140GB of the Act. There is also no evidence before the Tribunal, and the applicant has not claimed, that there is a relevant pending review of a decision not to approve the sponsorship or nomination made under s.140GB in respect of the applicant. It follows that the requirements of s.338(2)(d) have not been met.

8. 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

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

   Denise Connolly
   Member