NTI (Migration)

[2018] AATA 3677

NTI (Migration) [2018] AATA 3677 (14 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr EMMANUEL Aninakwaah NTI

CASE NUMBER:  1822265

DIBP REFERENCE(S):  CLF2018/192533

MEMBER:Alan McMurran

DATE:14 Sep 2018

PLACE OF DECISION:  Sydney

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

Statement made on 14 September 2018 at 2:32pm

CATCHWORDS

MIGRATION – Training (class GF) visa – Subclass 407 (Training) – sponsored by a Commonwealth agency – approved nomination at the time of review application – fresh nomination application – no Tribunal-reviewable decision – no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 140, 338, 347, 411, 412
Migration Regulations 1994, Schedule 2 cl 407.214; r 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 1 August 2018 for review of a decision to refuse a Training (class GF) Training (subclass 407) visa to the applicant.

2. The delegate’s decision found that the applicant did not satisfy cl. 407.214 in Schedule 2 of the Migration Regulations.

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.

5. 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. A decision to refuse to grant a Training visa subclass 407 is reviewable in these circumstances if the applicant was sponsored or nominated as required by a criterion for the grant of the visa.

6. A review of the Department’s Decision Record shows that on 12 July 2018, the Department delegate determined the applicant did not satisfy cl. 407.214 of the Migration Regulations. Cl. 407. 214 (b) provides that at the time of decision, if the approved sponsor is not a Commonwealth agency, then the applicant must show that the nomination has been approved under section 140 GBA of the Act, on the basis of the criteria in regulation 2.72A.

7. The applicant was informed of the decision by email to the applicant’s representative on the 12 July 2018. At the time of decision, there was no approved nomination in favour of the visa applicant.

8. The visa applicant lodged this review on 1 August 2018.As at the date of lodgement by the applicant there was no outstanding application for approval of a nomination in favour of the visa applicant, and no application pending to review a decision to refuse a nomination application in favour of the applicant.

9. On 15 August 2018, the Tribunal sent a natural justice letter to the applicant inviting him to comment on the validity of the application for review, informing him that at the time the review application was lodged (1 August 2018), the applicant was not identified in a nomination under section 140 GB of the Act that was approved or pending. The applicant was asked to respond in writing by 29 August 2018.

10. On 31 August 2018, the representative for the applicant responded by email to the Tribunal, advising that a fresh nomination application had been lodged on 20 August 2018. A check of the Department records shows that an application for nomination for a training position was lodged with the Department of Home Affairs by the sponsor, iCare Community Services Inc, on 20 August 2018 at 15:34 PM.

11. The applicant’s representative submitted that the nomination application had been lodged after the visa applicant’s review application, because the agent “was not able to get instructions on time owing to the fact that the responsible person from the nomination entity was not available.” The representative said that difficulties had been experienced obtaining information from Ghana, which information was to be included in a nomination application. The representative went on to submit that there were “excessive and futile delays”, without providing details, but by way of explanation for timing of the lodgement of the nomination application.

12. The applicant having acknowledged that the nomination application was lodged after this review application, submitted nonetheless that the Tribunal might consider “referencing his visa appeal” to the newly-lodged nomination application made 20 August 2018.

13. The Tribunal notes the submission, but finds it is not satisfied that the nomination application can be linked to the current visa review application. The Tribunal has considered the submissions, but it does not have discretion to find jurisdiction contrary to the provisions in the Act and Regulations.

14. The Tribunal finds that the application is not reviewable in the circumstances of this case because the applicant was not sponsored or nominated as required by a criterion for the grant of the visa.

15. The Tribunal finds that 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 section 140 GB 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 ceased (section.338 (2) (d) (i); or

    ·there is a pending application for review of a decision not to approve the sponsor under section 140E, or a pending application for review of a decision not to approve the nomination under section 140 GB (s.338 (2) (d) (ii).

16. The Tribunal finds there was no valid application for review of the decision to refuse the nomination application before the Tribunal at the time this review application was made on 1 August 2018 and no pending application for review.

17. 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

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

    Alan McMurran
    Member