Singh (Migration)

[2021] AATA 2664

Singh (Migration) [2021] AATA 2664 (2 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tanjot Singh

CASE NUMBER:  2101876

DIBP REFERENCE(S):  BCC20179/37768

MEMBER:Phoebe Dunn

DATE:2 June 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 02 June 2021 at 2:19pm

CATCHWORDS

MIGRATION – Temporary Business Entry Subclass 457 visa – applicant was not identified in an approved nomination – no pending review of a decision not to approve the nomination – at the time of the delegate’s decision the nominator was not an approved sponsor – no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29

Migration Act 1958, ss 65, 338, 347,411, 412, cl 457.223, Schedule 2

Migration Regulations 1994, rr 2.72, 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 18 February 2021 for review of a decision to refuse the applicant a Temporary Business Entry Subclass 457 visa made by a delegate of the Minister on 4 February 2021. The applicant applied for the Subclass 457 visa on 9 March 2017 on the basis that he had been nominated for the nominated position of Café/Restaurant Manager (ANZSCO 141111) by his sponsor Aroma Cuisines Pty Ltd (the nominator).  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 (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.

3. A decision to refuse to grant a Subclass 457 visa is a reviewable decision under Part 5 of the Act in certain circumstances, including that the applicant must have made the visa application while in the migration zone. 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, must have been made by a person who was a standard business sponsor at the time the nomination was approved, and must not have ceased as provided for in r.2.75: cl.457.223(4)(a) of Schedule 2 to the Regulations. Accordingly, the decision is reviewable if at the time the decision to refuse to grant the visa was made: either the applicant is identified in an approved nomination that has not ceased; or a review of a decision under s.140E not to approve the sponsor of the applicant is pending; or a review of a decision under s.140GB not to approve the nomination of the applicant is pending: s.338(2)(d) of the Act and r.4.02(1A) of the Regulations.

4. By letter dated 9 April 2021 an officer of the Tribunal wrote to the applicant inviting the applicant to comment in writing by 23 April 2021 on its preliminary view (noting that it was a matter for a Member to determine) that it did not have jurisdiction in relation to this matter because at the time of the delegate’s decision to refuse to grant the visa, the applicant was not identified in an approved nomination that had not ceased. The letter also stated that there was no valid and pending application for review before the Tribunal of a decision not to approve the sponsor under s.140E of the Act, or of a decision not to approve the nomination under s.140GB of the Act.

5. The applicant responded by letter dated 23 April 2021 as follows:

   I refer to the above application for review. Thank you for your email in relation to the abovementioned seeking information to validate the application.

   ·This application has been to AAT before, and it was remitted recently by AAT to the department and at that time there was valid nomination determined by the tribunal.

   ·When the department sent a letter to the applicant stating that the nomination has expired, and he is unable to link another nomination to this application. The applicant was willing to withdraw the application and lodge a 482 application.

   ·To lodge a 482 application, one requires Labour Market Testing (LMT). The applicant requested the time to conduct LMT. The advertisement should be published for 28 days to meet the requirement and the applicant only had 28 days in total.

   ·The applicant’s request for additional time was refused by the department aggrieving the applicant.

   ·Followed by this event the application was refused by the department.

   The applicant should have been granted the visa in the first place when he applied as all accurate information was provided. They rejected the application. Upon the remittal, they have ignored the “the nomination” linked to an existing application that does not expire therefore kindly accept the application as a valid application and if accepted, the applicant will resubmit the Sponsorship/Nomination.

6. The applicant also provided a copy of an article in the Immigration Daily News – Migration Alliance on 13 November 2020 entitled: ‘Refuse, refuse, refuse – 457 nominations and visas refused’ with his response.

7. A review of Departmental records shows that at the time the delegate made the decision to refuse the Subclass 457 visa on remittal, the applicant was not identified in an approved nomination that had not ceased, there was no pending review of a decision not to approve the sponsor of the applicant, and there was no pending review of a decision not to approve the nomination of the applicant.  These records show that the nominator was approved as a standard business sponsor from 10 August 2015 to 10 August 2020 and had a nomination in respect of the applicant approved on 10 April 2017 which expired on 10 April 2018 by virtue of the operation of r.2.75(2)(b) of the Regulations.  A subsequent application for approval as a standard business sponsor made on 13 August 2020 was refused on 7 October 2020.

8. The Tribunal has considered whether the savings provisions apply in this case, noting that the nomination expired after 18 March 2018. Regulation 2.75(2)(b), which provides for cessation of an approved nomination 12 months after the nomination was approved, does not apply to a nomination made before 18 March 2018 if the person identified in the nomination applied for a Subclass 457 visa before 18 March 2018 and they applied to the Tribunal for a review of a decision to refuse to grant that visa within 12 months after the day on which the nomination was approved.[1] In this case, the nomination was approved on 10 April 2017 and the applicant applied for a review of a decision to refuse his Subclass 457 visa application on 26 October 2017 while the nomination was still on foot. By decision dated 18 August 2020, the Tribunal remitted the applicant’s Subclass 457 visa application to the Department for reconsideration on the grounds that the applicant met cl.457.221 of Schedule 2 to the Regulations. However, this savings provision does not save the application in this case, because at the time of the delegate’s decision the nominator was not an approved sponsor and there was no pending review of a decision not to approve the sponsor of the applicant at the time the delegate made the decision to refuse the Subclass 457 visa on 4 February 2021. Regulation 2.75(2)(d) provides that an approval of a nomination ceases three months after the day on which the approval as a standard business sponsor ceases, in this case being three months after 10 August 2020. As such the nomination had also ceased at the time of the decision to refuse the visa on 4 February 2021.

   [1] Clause 6704(15) of sch 13 to the Regulations, inserted by F2018L00262. The requirements in cl 6704(15) are cumulative; both paras (a) and (b) must be met for reg 2.75(2)(b) to not apply: Poudel v MICMSMA [2020] FCCA 3261 at [46]–[47].

9. The Tribunal has carefully considered the applicant’s submissions but finds that, notwithstanding the applicant’s claim that there was a linked nomination that had not expired which was ‘ignored’ by the delegate on remittal, the evidence before the Tribunal shows that at the time the decision to refuse to grant the visa was made, the applicant was not identified in an approved nomination by an approved business sponsor that has not ceased, there was no pending review of a decision not to approve the sponsor of the applicant, and there was no pending review of a decision not to approve the nomination of the applicant. Accordingly, the requirements of s.338(2)(d) were not met.

10. 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).

11. 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

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

    Phoebe Dunn
    Member