Mashuk (Migration)

[2019] AATA 6239

Mashuk (Migration) [2019] AATA 6239 (21 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammed Golam Sorwar Mashuk

CASE NUMBER:  1910690

DIBP REFERENCE(S):  PNJ

MEMBER:Cathrine Burnett-Wake

DATE:21 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 21 October 2019 at 3:28pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – no Tribunal-reviewable decision – applicant received notification of invalid application from Department – 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 29 April 2019 for review of Notification of invalid application for a Temporary Skill Shortage (Short Term) (subclass 482) 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. They include decisions to refuse and cancel visas of various kinds and a range of sponsorship and nomination decisions, but the evidence before the Tribunal indicates that at the time the review application was lodged, no relevant decision had been made.

3. On 12 April 2019, the Department notified the applicant that the application for a Temporary Skill Shortage (Short Term) (subclass 482) visa was invalid as the applicant had not satisfied Item 1240(3)(g). This item requires, if the applicant has nominated an occupation specified in the legislative instrument and is a class of person specified they must provide evidence of commencement of a skills assessment from an assessing authority. The Department determined that because the applicant did not provide any evidence to demonstrate a skill assessment had commenced it was an invalid application and notified the applicant accordingly.

4. On 30 April 2019, the Tribunal wrote to the applicant setting out that it was of the view that the application is not a valid application as Departmental records indicate that the application for a the subclass 482 visa was found to be invalid. Therefore, as no decision was made to refuse or cancel a visa, there is no decision for the Tribunal to review. The letter also set out that if the applicant wished to make any comments on whether a valid application had been made they should do so by 14 May 2019.

5. On 14 May 2019, the applicant’s representative, Badrinath Thungathurthi, wrote to the Tribunal requesting an extension of time of two weeks to comment on validity and jurisdictional error as they were in consultation with a Barrister and awaiting an opinion.

6. On 31 May 2019, the Tribunal responded to the representative and requested that a response be provided by 7 June 2019.

7. On 7 June 2019, the applicant uploaded a positive skill assessment from VETASSESS dated 14 May 2019, along with correspondence between the applicant and VETASSESS. The Tribunal notes that the correspondence indicates that VETASSESSES received the skills assessment application on 23 April 2019, which was after the applicant attempted to lodge the subclass 482 visa with the Department. No submissions were provided to the Tribunal addressing the natural justice letter sent to the applicant on 12 April 2019.

8. A notification of an invalid application, as was provided to the applicant in this matter, is not a decision relating to an application properly made under s.347, s.4.12 or s.29.

9. As no reviewable decision had been made at the time the review application was lodged it follows that the application 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