Rebeira (Migration)

[2019] AATA 2108

Rebeira (Migration) [2019] AATA 2108 (1 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Dinusha Dilani Wyjanthi Rebeira

CASE NUMBER:  1837820

DIBP REFERENCE(S):  BCC2018/4359468

MEMBER:R. Skaros

DATE:1 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 01 April 2019 at 1:41pm

CATCHWORDS
MIGRATION – Training (Class GF) visa – Subclass 407 (Training) – ‘sponsored’ by an ‘approved sponsor’ – no approved or pending nomination – no pending application for review – review application made out of time – prescribed filing fee not paid – formality in order to apply for judicial review – not a reviewable decision – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140E, 140GB, 337, 338, 347
Migration Regulations 1994 (Cth), rr 1.03, 2.58, 4.02; Schedule 2, cls 407.213, 407.214

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 December 2018 for review of a decision to refuse to grant the applicant a Training (Class GF) Subclass 407. 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 407 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. It is a requirement for the visa that an approved sponsor has agreed, in writing, to be the sponsor of the applicant and that the sponsor is a ‘temporary activities sponsor’, or if the application for the visa was made on or before 18 May 2017, a ‘professional development sponsor’ or a ‘training and research sponsor’: cl.407.213 of Schedule 2 to the Regulations. Each of these types of sponsor is a person who is an ‘approved sponsor’; and is approved as a sponsor in relation to the relevant 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 also a requirement for the visa that the sponsor has nominated a program of occupational training in relation to the applicant under s.140GB(1)(b) of the Act: cl.407.214 of Schedule 2 to 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)).

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 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. The evidence before the Tribunal indicates that the applicant applied for the visa on the basis of a nomination by CFC 1PSQ Parramatta Pty Ltd. The sponsorship application made by CFC 1PSQ Parramatta Pty Ltd was refused on 24 October 2018. CFC 1PSQ Parramatta Pty Ltd did not apply for review of that decision. As the sponsorship application was refused, the nomination in respect of the applicant was administratively finalised by the Department. 

7. At the time of this application for review, the applicant was not sponsored by an approved sponsor in that she was not identified in a nomination under s.140GB of the Act that was approved or pending. Furthermore, there was no pending application for review of a decision not to approve the sponsor under s.140E or not to approve the nomination under s.140GB.

8. The Tribunal also notes that the application for review was not lodged within the prescribed period and was not accompanied by the prescribed fee. A case note on the Tribunal’s file indicates that a representative, when lodging the application for review in person, informed a Tribunal officer that they were aware that the application was out of time, that the intention is to apply for judicial review, that the application to the Tribunal was a formality and that they would not be paying the Tribunal’s prescribed filing fee.

9. On 10 January 2018, the Tribunal invited the applicant to comment on the validity of the application for review, however, no response has been received.

10. 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.

11. 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).

12. 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.

13. The Tribunal further notes that the application for review was lodged out of time and no fee has been paid.

    DECISION

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

    R. Skaros
    Member