NABAVI (Migration)

[2017] AATA 2792

NABAVI (Migration) [2017] AATA 2792 (27 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms MARJAN SADAT NABAVI

CASE NUMBER:  1724912

DIBP REFERENCE(S):  BCC2016/3152778

MEMBER:Alan McMurran

DATE:27 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 27 November 2017 at 2:07pm

CATCHWORDS
Migration – No jurisdiction – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary (Skilled)) - No approved nomination - No review of that decision sought or pending

LEGISLATION
Migration Act 1958, ss 5,140E,140E(1) 140GB, 338, 338(2)(d), 338(2)(d)(i)), 338(2)(d)(ii)),

411

Migration Regulations 1994, Schedule 2, cl 457.223(4)(a), r 1.03, r 2.58, r 4.02(4)

CASES

Ahmad v MIBP [2015] FCAFC 182

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 12 October 2017 for review of a decision to refuse the applicant a subclass 457 temporary work skilled 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 is reviewable if:

   ·the applicant made the visa application while outside the migration zone, and the applicant was sponsored or nominated as required by a criterion for the grant of the visa;

   ·or the applicant made the visa application while in the migration zone and 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.

4. The application Is not reviewable in the circumstances of this case because the applicant was not the subject of an approved nomination as required by a criterion for the grant of the visa. The applicant had been nominated for the occupation of Accountant (General) (ANZSCO 221111). This

5. A review of the Tribunal’s file shows that the application for the Visa was made on 22 September 2016. The delegate refused the application on 11 October 2017 for the reason that the applicant’s nominator, Ward Property Group Pty Ltd,(the nominator) had lodged a nomination application on 17 March 2017, which was refused on 12 September 2017.

6. The Department sent a letter to the applicant on 11 October 2017 informing her of the Department’s decision. The applicant sought review of that decision on 12 October 2017. On 16 October 2017, the Tribunal wrote to the applicant acknowledging the application and explaining certain aspects of the process including the applicant’s right of withdrawal at any time.

7. The Tribunal wrote to the applicant’s representative on 7 November 2017 and expressed the view that the application was not valid because at the time the review was sought and lodged with the Tribunal, the applicant was not identified in a nomination under section 140 GB of the Act that was approved or pending. A review of the Tribunal’s file showed there was no pending application for review before the Tribunal of either a decision not to approve the sponsor or the nomination.

8. The applicant was invited to comment in writing by 21 November 2017. The applicant’s representative provided a letter on 21 November 2017 in response to the question raised as to the validity of the application. The representative submitted that the outcome of the “nomination and sponsorship applications is beyond control of visa applicants for the successful results of the applications are entirely up to how efficiently and how persuasively the nominator and sponsor presents to the relevant government authority, the department of Immigration in this case”. The Tribunal notes it has not reviewed the Department’s nomination decision nor made any findings in relation to the matters behind the application and either how efficiently or how persuasively the nominator may have presented the application.

9. The submission is then made that the application may be granted “if there is no significant records or sign of breach of law and order” and that a decision should then be made “favourably to the applicant”. No other relevant submissions were made by the applicant or the representative or received by the Tribunal.

10. The Tribunal has had regard to the provisions in relation to Part 5 Reviewable Decisions, at section 338 of the Act. Subsection 338(2)(d) prescribes that the applicant non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made, or an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made review of the sponsorship decision is pending. A review of the Tribunal’s file reveals that there is no evidence of an application by the nominator to review the nomination application, which has been determined or which is pending.

11. 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].

12. 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)).

13. The Tribunal finds that the applicant does not meet the criteria for consideration of the application as a reviewable decision, as there was no approved nomination and no review of that decision to refuse the nomination either sought or pending.

14. 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

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

    Alan McMurran
    Member