Patel (Migration)

[2019] AATA 256

Patel (Migration) [2019] AATA 256 (6 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Vickrambhai Rasiklal Patel
Ms Hima Patel

CASE NUMBER:  1836511

DIBP REFERENCE(S):  BCC2017/4191415

MEMBER:Katie Malyon

DATE:6 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 06 February 2019 at 4:51 pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – 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 140, 338, 347, 411, 412
Migration Regulations 1994, r 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision made by a delegate of the Minister for Immigration, dated 22 November 2018, to refuse to grant the applicants Temporary Business Entry (Class UC) Subclass 457 visas under s.65 of the Migration Act 1958 (the Act).  

2. The review application was lodged with the Tribunal on 12 December 2018.  For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

3. The Tribunal has jurisdiction to review a decision under 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. Section 338 and s.411 of the Act and r.4.02(4) of the Migration Regulations 1994 (the Regulations) 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.

4. A decision to refuse an application for a Subclass 457 visa is reviewable if the applicant made their review application while in the migration zone and, either, the applicant is sponsored or nominated by an approved sponsor at the time the application for review is made or an application for review of a decision not to approve the sponsor or the nomination has been made but, at the time of application for review of the visa refusal is made, review of that decision is pending: s.338(2)(d) of the Act.

5. The Tribunal formed a preliminary view that the applicants’ review application may not be valid. On 15 January 2019, the Tribunal wrote to the applicants, through their representative, and invited them to comment on the validity of their application for review. The invitation indicated that the review application might not be valid because, at the time it was lodged on 12 December 2018, the applicants were not identified in a nomination under s.140GB of the Act that was approved, or pending with the Department. Further, the Tribunal’s letter also stated that nor was there a valid and pending application for review with the Tribunal of a decision not to approve the sponsor under s.140E of the Act or a decision not to approve the nomination under s.140GB of the Act.

6. The applicants did not respond to the Tribunal’s invitation to comment on the validity of their application. 

7. Based on its review of Departmental records, the Tribunal finds that, when the applicants’ representative lodged their application for review with the Tribunal on 12 December 2018, neither the first named applicant, UK national Mr Vickrambhai Rasiklal Patel, nor the second named applicant, his partner Ms Hima Patel, were identified in a nomination under s.140GB of the Act that was approved or pending at that time. Furthermore, when they made their review application, there was no pending application for review before the Tribunal of a decision not to approve their proposed sponsor under s.140E of the Act, or a decision not to approve a nomination under s.140GB of the Act.

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.

   Katie Malyon

   
   Member