PATEL (Migration)

[2018] AATA 3025

PATEL (Migration) [2018] AATA 3025 (12 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Karpit Bhogilal PATEL

CASE NUMBER:  1815904

DIBP REFERENCE(S):  BCC2017/1270675

MEMBER:R. Skaros

DATE:12 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 12 July 2018 at 11:38am

CATCHWORDS

Migration – Temporary Business Entry (Temporary Work)(Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – no Tribunal-reviewable decision – sponsored by an approved sponsor – applicable fee not paid – no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 5, 140, 338, 347, 411, 412
Migration Regulations 1994, Schedule 2 cl 457.223(4)(a), rr 1.03, 2.58, 4.02, 4.10, 4.13

CASES

Ahmad v MIBP [2015] FCAFC 182

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 31 May 2018 for review of a decision to refuse to grant the applicant a Temporary Business Entry (Temporary Work)(Class UC) Subclass 457 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. A decision to refuse the grant of a Temporary Work 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 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.

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 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].

4. 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)).

5. In this case the applicant applied for the visa on the basis of a nomination by Hawkesbury Valley Meat Processors Pty Ltd. The nomination in relation to the applicant was refused by the Department. No application for review of the decision to refuse the nomination was made. There is also no evidence to indicate that another nomination under s.140GB by an approved sponsor was pending at the time of the application for review. 

6. On 5 June 2018, the Tribunal wrote to the applicant and invited him to comment on the validity of the application for review. The response was due on 19 June 2018 however the applicant did not provide a response.

7. Subsequently, the Tribunal received information that the cheque provided with the application for review, for payment of the prescribed fee, had been dishonoured by the relevant financial institution. On 12 June 2018 the Tribunal wrote to the applicant informing him that the cheque for payment of the fee had been dishonoured and that in the circumstances his application may not be considered a valid application for review. The applicant did not provide a response.

8. Having considered the information before it, the Tribunal finds that at the time of the application for review the applicant was not identified in a nomination under s.140GB by an approved sponsor that was approved or pending. There is also nothing before the Tribunal to indicate that at the time of review there was a pending application for review of a decision not to approve the sponsor under s.140E or a pending review of a decision not to approve the nomination under 140GB. For these reasons, the decision is not reviewable.

9. Further to the above, the Tribunal notes that the cheque provided with the application for review was dishonoured, resulting in the prescribed fee not being paid. Pursuant to s.347(1) of the Act and r.4.13 of the Migration Regulations 1994, this application had to be given to the Tribunal within the prescribed period, as specified in s.347(1)(b) and r.4.10, and accompanied by the prescribed fee unless a determination has been made under r.4.13(4) that the fee should be reduced on the basis of financial hardship. In this case, the prescribed fee has not been paid and nor was the application accompanied by a fee reduction request within the prescribed period for lodging the review application. In these circumstances, the application for review is not a valid application.

10. For the above reasons, the Tribunal finds that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

    DECISION

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

    R. Skaros
    Member