Nadeem (Migration)

[2018] AATA 2439

Nadeem (Migration) [2018] AATA 2439 (1 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ahmed Nadeem

CASE NUMBER:  1811673

DIBP REFERENCE(S):  BCC2017/1554188

MEMBER:Mary Sheargold

DATE:1 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 01 June 2018 at 11:52am

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Sponsored by an approved sponsor – Standard business sponsor – No jurisdiction

LEGISLATION

Migration Act 1958, ss 5, 140, 337, 338

Migration Regulations 1994, Schedule 2 cl 457.223, rr 1.03, 2.58, 2.72, 2.76, 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 24 April 2018 for review of a visa refusal for a 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 10 January 2017, the applicant’s sponsor, Ahmadiyya Muslim Association Australia, was notified that it was approved to nominate the applicant for a Subclass 457 visa.  The Notice of Decision: Nomination Approval Notice states that the nomination approval ceases on the earliest of the following:

   ·the day on which Immigration receives notification, in writing, of the withdrawal of the nomination;

   ·12 months after the day on which the nomination is approved;

   ·the day on which the applicant, or the proposed applicant, for the nominated occupation, is granted a subclass 457 (Temporary Work (Skilled)) visa;

   ·if the approval of the nomination is given to a standard business sponsor – 3 months after the day on which the person’s approval as a standard business sponsor ceases;

   ·if the approval of the nomination is given to a standard business sponsor, and the person’s approval as a standard business sponsor is cancelled under subsection 140M(1) of the Migration Act (1958) – the day on which the person’s approval as a standard business sponsor is cancelled;

   ·if the approval of the nomination is given to a party to a work agreement (other than a Minister) – the day on which the work agreement ceases.

   In accordance with these requirements, the nomination approval expired no later than 10 January 2018.  Therefore, when the applicant lodged his review application, there was no approved nomination.

7. On 23 May 2018, the applicant made submissions to the Tribunal indicating that his sponsor will be renewing its labour agreement for sponsorship of Subclass 482 visas, and asked whether the Tribunal would be able to consider a new nomination application or whether the application would need to be lodged with the Department. The Tribunal notes that an application for approval of a nomination for a Subclass 482 visa made after 18 March 2018 cannot be relied upon for an outstanding Subclass 457 visa application made prior to 18 March 2018: r.2.72(1)(b) states that r.2.72 applies in relation to a person who, under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following:

   ·a holder of a Subclass 457 (Temporary Work (Skilled)) visa;

   ·a holder of a Subclass 482 (Temporary Skill Shortage) visa;

   ·an applicant or proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.

8. The Tribunal finds that the applicant does not fit within any of the classes of persons under r.2.72(1)(b) set out above, because he does not hold a Subclass 457 visa or Subclass 482 visa, nor is he an applicant or proposed applicant for a Subclass 482 visa. Therefore, the applicant cannot rely on his sponsor submitting a new approved nomination in relation to a Subclass 482 visa application to support the applicant’s current review application.

9. The Tribunal finds that, at the time the application to review the decision to refuse to grant the visa was made, the applicant was not ‘sponsored’ by an ‘approved sponsor’ and no review of a decision not to approve the sponsor was pending. Accordingly, the requirements of s.338(2)(d) were not met.

10. 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).

11. 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

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

    Mary Sheargold
    Member