Mancino (Migration)

[2018] AATA 4678

Mancino (Migration) [2018] AATA 4678 (16 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Duilio Ermanno Mancino
Ms Elisabeth Stampone

CASE NUMBER:  1606707

DIBP REFERENCE(S):  BCC2015/3539147

MEMBER:Cathrine Burnett-Wake

DATE:16 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 16 November 2018 at 3:19pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visas – 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
Migration Regulations 1994, Schedule 2 cl 457.223(4)(a), rr 1.03, 2.58, 2.72, 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 11 May 2016 for review of a Temporary Work Subclass 457 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 29 October 2018, the Tribunal wrote to the applicant stating that at the time the review application was lodged, the applicant was not identified in a nomination under s.140GB of the Act that was approved or pending, and invited the applicant to respond to this information by 12 November 2018.

7. The applicant did not respond to the Tribunal’s letter of 29 October 2018.

8. The Tribunal has considered the material before it, and notes that at the time the review application was made on 13 November 2018, the visa applicant was not identified in a nomination under s.140GB by an approved sponsor as required by s.338(2)(d)(i) of the Act, nor is there a valid and pending application for review of a decision not to approve a standard business sponsor under s.140E, or a valid and pending review of a decision not to approve the nomination under s.140GB (as required by s.338(2)(d)(ii) of the Act). Therefore, the applicant cannot meet the requirements of s.338(2)(d) of the Act, and the Tribunal finds that the delegate's decision is not a reviewable decision.

9. As there is no reviewable decision it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

    Cathrine Burnett-Wake
    Member