MORIUE (Migration)

[2019] AATA 4666

MORIUE (Migration) [2019] AATA 4666 (29 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yuto MORIUE

CASE NUMBER:  1914356

DIBP REFERENCE(S):  BCC2019/1725847 PNJ

MEMBER:Jennifer Cripps Watts

DATE:29 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 29 July 2019 at 4:33pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 – Medium-term stream – sponsor’s related nomination refused – applicant not identified in approved nomination – no application for review of refusal – no response to Tribunal communication – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), s 140E, 140GB

Migration Regulations 1994 (Cth), Schedule 2, cl 482.212(1)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 5 June 2019 for review of a decision to refuse to grant the applicant a Temporary Skill Shortage (class GK) (Medium Term) (subclass 482) visa.  For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

2. The visa was refused on 15 May 2019.  The applicant applied for review, within time, on 5 June 2019 and provided the Tribunal with a copy of the delegate’s decision.  In the review application, Mr Koshi Ozawa of Oz Shine Migration was nominated as the representative, including an email address, [email protected].  The Tribunal has received no notification since the review application was lodged that there has been any change to the applicant’s circumstances, for example, his contact details.

3. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

4. 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.

5. A decision in relation to subclause 482.212(1)(a) is reviewable if the applicant made the visa application while in the migration zone and either the applicant had an approved nomination or refusal of a valid or pending nomination identifying him with a review pending.

6. Department records indicate that at the time the review application was lodged the applicant was not identified in a nomination under s.140GB of the migration Act 1958 that was approved.  There has been no application for review of the refusal of a related nomination by the sponsoring employer indicated in the visa application.

7. On 9 July 2019, the Tribunal sent the applicant a natural justice letter to the email address provided by him in his review application. The applicant was informed that it appeared the review application was invalid because, at the time of the delegate’s decision to refuse to grant the visa, he was not identified in an approved nomination that had not ceased, nor was there a valid and pending application for review before the Tribunal of a decision not to approve the sponsor under s.140E of the Migration Act 1958, or of a decision not to approve the nomination under s.140GB of the Act.  The applicant was invited to comment on whether he had made a valid application, in writing, by 23 July 2019.  The Tribunal received no response to the natural justice letter inviting comment that was sent to him on 9 July 2019.

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.

   Jennifer Cripps Watts
   Member