McCarthy (Migration)

[2020] AATA 2352

McCarthy (Migration) [2020] AATA 2352 (5 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Catherine Anne McCarthy

CASE NUMBER:  1919946

DIBP REFERENCE(S):  BCC2018/4000104

MEMBER:R. Skaros

DATE:5 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 05 June 2020 at 2:37pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – approved nomination ceased – no application for review of decisions not to approve sponsor or nomination – no response to tribunal’s communication – no jurisdiction

LEGISLATION

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

Migration Regulations 1994 (Cth), rr 1.03, 4.02(4), Schedule 2, cl 482.212(1)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 22 July 2019 for review of a decision to refuse to grant the applicant a Temporary Skill Shortage (Class GK) 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. A decision to refuse to grant a Subclass 482 visa is a reviewable decision under Part 5 of the Migration Act 1958 (the Act) in certain circumstances, including that the applicant must have made the visa application while in the migration zone. It is a requirement for the visa that the nomination identified in the visa application must have been approved under s.140GB of the Act and the nomination made by a person who was an approved sponsor at the time the nomination was approved: cl.482.212(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations). Accordingly, the decision is reviewable if at the time the decision to refuse to grant the visa was made: either the applicant is identified in an approved nomination that has not ceased; or a review of a decision under s.140E not to approve the sponsor of the applicant is pending; or a review of a decision under s.140GB not to approve the nomination of the applicant is pending: s.338(2)(d) of the Act and r.4.02(1A) of the Regulations.

4. Information before the Tribunal indicates that at the time the decision to refuse to grant the applicant the visa was made, on 11 July 2019, none of the circumstances provided for under s.338(2)(d) applied. The Tribunal acknowledges that a nomination in relation to the applicant was approved on 6 August 2018, however, by operation of r.2.75(2)(d), that nomination ceased to be in effect on 13 April 2019, being 3 months after the sponsorship end day, which occurred on 13 January 2019,  in relation to the nomination: r.1.03.

5. There is also no information before the Tribunal which suggests that as at 11 July 2019 there was a pending review of a decision not to approve the sponsor or a pending review of a decision not to approve the nomination.

6. On 31 March 2020, the Tribunal wrote to the applicant via her authorised representative and invited the applicant to comment on the validity of the application for review. The applicant was informed that if she wished to make any comments, she should do so in writing by 14 April 2020. The applicant has not provided a response and no contact has been made with the Tribunal to indicate that a response is forthcoming. In the circumstances, the Tribunal has decided to proceed to a decision on the information before it.

7. The Tribunal finds that, at the time the decision to refuse to grant the visa was made, the applicant was not identified in an approved nomination that has not ceased, no review of a decision not to approve the sponsor of the applicant was pending, and no review of a decision not to approve the nomination of the applicant was pending. Accordingly, the requirements of s.338(2)(d) were not met.

8. As such, the delegate’s decision in the circumstances is not a reviewable decision under s.338(2) or under any of the other subparagraphs of s.338 and r.4.02(4).

9. 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

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

    R. Skaros
    Senior Member