PARK (Migration)

[2018] AATA 3945

PARK (Migration) [2018] AATA 3945 (10 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr KUANGJAE PARK
Ms EUN HA KIM

CASE NUMBER:  1823014

DIBP REFERENCE(S):  BCC2018/906779

MEMBER:R. Skaros

DATE:10 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 10 October 2018 at 12:55pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – no Tribunal-reviewable decision – sponsored by an approved sponsor – approved nomination of an occupation – no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 5, 140, 338, 347, 411, 412
Migration Legislation Amendment (Temporary Skills Shortage Visa and Complementary Reforms) Regulations 2018
Migration Regulations 1994, Schedule 2 cl 457.223(4)(a), rr 1.03, 2.58, 2.72, 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 9 August 2018 for review of a decision to refuse to grant the applicants Temporary Business Entry (Class UC) Subclass 457 visas. 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. A decision refusing to grant a Subclass 457 visa is reviewable if the applicant made the visa application while in the migration zone and either the applicant is sponsored by an approved sponsor at the time that the application for review of the visa refusal is made, or an application for review of a decision not to approve the sponsor or nomination application has been made but at the time that the application for review of the visa refusal is made, review of the sponsorship or nomination application decision is pending.

3. 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 must have been made by a person who was a standard business sponsor at the time that 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 Minister for Immigration and Border Protection [2015] FCAFC 182 (Katzmann, Robertson and Griffith JJ, 16 December 2015) (Ahmad) at [95] – [96].

4. Therefore, 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)).

5. The applicant applied for the Subclass 457 visa on the basis of a nomination by Barangaroo Sushi Pty Ltd.  On 5 March 2018 the Department refused to approve Barangaroo Sushi Pty Ltd as a standard business sponsor. On the same day, the Department administratively finalised the nomination made in respect of the applicant for the purposes of the Subclass 457 visa.

6. Barangaroo Sushi Pty Ltd did not apply for review of the decision to refuse to approve it as a standard business sponsor however they did make another application for approval as a standard business sponsor on 6 March 2018. The representative acting for the employer and the visa applicants sought to have the finalised nomination linked to the new standard business sponsorship application, however, the representative was advised by the Department that this is not possible and that a fresh nomination had to be lodged.

7. Departmental records indicate that a new nomination in respect of the applicant was lodged with the Department on 6 August 2018. That nomination however appears to have been in respect of a Temporary Skills Shortage (Subclass 482) visa.  

8. The Tribunal formed the preliminary view that the applicant had not lodged a valid application for review because at the time of the application for review of the visa refusal decision, the applicant was not the subject of an approved nomination or pending nomination made under s.140GB for the purposes of a 457 visa, nor was there a pending review of a decision to refuse to approve a nomination or a decision not to approve Barangaroo Sushi Pty Ltd as a standard business sponsor.

9. On 13 August 2018, the Tribunal wrote to the applicants and invited them to comment on the validity of the application for review. In response, the Tribunal received various submissions detailing the history of the applications made by Barangaroo Sushi Pty and the visa applicants, as detailed above. The submissions included the applicant’s concerns regarding the handling of the application by his representative, details of the applicant’s qualifications and skills and the applicants’ personal circumstances, including the birth of their child. A copy of the acknowledgement letter of the nomination lodged with the Department on 6 August 2018 was also provided to the Tribunal.

10. The Tribunal has had regard to the information before it, but for the reasons that follow, considers that it does not have jurisdiction in this matter.  

11. The decision which is the subject of this review is in respect of a Subclass 457 (Temporary Work (Skilled) visa. This visa subclass was repealed on 18 March 2018 by the Migration Legislation Amendment (Temporary Skills Shortage Visa and Complementary Reforms) Regulations 2018 and replaced with the Subclass 482 (Temporary Skills Shortage) visa. New nominations lodged from 18 March 2018 are generally for a Subclass 482 visa and do not operate to support an outstanding application for a subclass 457 visa, though they can support the continued holding of an existing 457 visa: r.2.72(1)(b). 

12. At the time the nomination made by Barangaroo Sushi Pty Ltd, on 6 August 2018, the applicant was not the holder of a Subclass 457 visa. This nomination therefore cannot be used to support a Subclass 457 visa application that was made prior to 18 March 2018. The Tribunal therefore finds that the nomination of the applicant which was pending at the time of the application for review was not one that was made under under s.140GB by an approved sponsor for the purposes of a Subclass 457 visa and therefore does not meet s.338(2)(d)(i).

13. There is also no information before the Tribunal, and the applicant has not claimed, that 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. In the circumstances, the application is not reviewable under s.338(2)(d)(ii) of the Act.

14. Given the above, the Tribunal finds that the decision is not reviewable under s.338(2)(d).

15. As the delegate’s decision is not reviewable in these circumstances, it follows that the application for review was not properly made and that the Tribunal does not have jurisdiction in this matter.

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

    R. Skaros
    Member