Lily (Migration)

[2017] AATA 1480

Lily (Migration) [2017] AATA 1480 (22 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Lily Talag

CASE NUMBER:  1712974

DIBP REFERENCE(S):  BCC2017/236267, CLF2017/45660

MEMBER:Katie Malyon

DATE:22 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 22 August 2017 at 2:27 pm

CATCHWORDS
Migration – Training (Class GF) visa – Training (Subclass 407) – Not identified in nomination – No pending application for review of sponsorship application – Decision not reviewable

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 65, 140E, 140GB, 338, 347, 411, 412
Migration Regulations 1994, Schedule 2, r 4.02(4)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 19 June 2017 by Ms Lily Talag for review of a decision to refuse to grant her a Training (Class GF) Training (Subclass 407) 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 (the Regulations) 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 an application for a Subclass 407 visa is reviewable if an applicant made their review application while in the migration zone and they were sponsored or nominated (as required) for the grant of the visa: s.338(2) of the Act.

3. The Tribunal formed a preliminary view that Ms Talag’s application for review may not be valid. On 1 August 2017, the Tribunal wrote to Ms Talag and invited her to comment on the validity of her application for review. The invitation indicated that her review application might not be valid because, at the time her review application was lodged on 19 June 2017, she was not identified in a nomination under s.140GB of the Act that was approved or pending and nor was there a pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E of the Act, or a decision not to approve a nomination under s.140GB of the Act.

4. The Training Manager of Ms Talag’s proposed sponsor, Frangipani Gentle Care Group Homes Pty Ltd (the Frangipani Group), responded on Ms Talag’s behalf to the Tribunal’s invitation to comment.  The letter from the Frangipani Group notes that, originally, Ms Talag was nominated by Meaningful Care Pty Ltd (Meaningful Care).  When Meaningful Care’s sponsorship application was refused on 16 February 2017, its nomination in respect of Ms Talag was administratively finalised on 22 February 2017.  The Frangipani Group then lodged a sponsorship application and a nomination in respect of Ms Talag on 24 March 2017.  However, after the Frangipani Group’s sponsorship application was refused by the Department on 31 May 2017, its nomination of Ms Talag was administratively finalised on 6 June 2017 and, as a result, her Subclass 407 visa application was refused on 8 June 2017.     

5. In the response to the Tribunal’s invitation to comment on the validity of Ms Talag’s Subclass 407 visa application the Frangipani Group’s Training Manager notes that, after refusal of the sponsorship application by Meaningful Care, Ms Talag was afforded the opportunity to respond to a natural justice letter issued by the Department.  She explains this is what led to lodgement of the sponsorship and nomination applications by the Frangipani Group.  She notes however that, after the Department refused the Frangipani Group’s sponsorship application, Ms Talag was not afforded the same opportunity to comment on adverse information about her proposed new sponsor.  The Training Manager of the Frangipani Group asserts that, had Ms Talag been afforded this opportunity in connection with her proposed sponsorship by the Frangipani Group, a new nomination application (and, presumably, a new sponsorship application) would have been lodged in respect of Ms Talag.  

6. Based on its review of Departmental records, the Tribunal finds that when Ms Talag lodged her application for review with the Tribunal on 19 June 2017 she was not identified in a nomination under s.140GB of the Act that was approved or pending. Furthermore, when Ms Talag made her review application, there was no pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E of the Act, or a decision not to approve a nomination under s.140GB of the Act at that time. For clarity, the Tribunal notes that, at the time of her review application, there was no pending application for review before the Tribunal of a decision not to approve either Meaningful Care or the Frangipani Group as sponsor under s.140E of the Act, or a decision not to approve a nomination under s.140GB of the Act made by either Meaningful Care or the Frangipani Group.

7. As the delegate’s decision is not reviewable in these circumstances it follows that Ms Talag’s application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Katie Malyon

   
   Member

   .