Singh (Migration)

[2018] AATA 5920

Singh (Migration) [2018] AATA 5920 (17 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ramandeep Singh

CASE NUMBER:  1815998

DIBP REFERENCE(S):  BCC2017/2463535

MEMBER:Michelle East

DATE:17 December 2018

PLACE OF DECISION:  Perth

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

Statement made on 17 December 2018 at 11:14am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled) – no pending or approved nomination – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 65, 140GB
Migration Regulations 1994 (Cth), Schedule 2 cl 457.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 31 May 2018 for review of the delegate’s decision refusing the applicant’s application for a Temporary Work (Skilled) (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 a Temporary Work (Skilled) (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 is pending. However, the decision is not reviewable in the circumstances of this case because the requirements of s.338(2)(d) are not met.

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 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. On 29 October 2018 the Tribunal wrote to the applicant seeking his comments on whether a valid application had been made, noting that at the time the application was lodged, the applicant was not identified in a nomination under s.140GB that was either approved or pending, nor was there a valid and pending application for review before the Tribunal of a decision not to approve the sponsor under s.140E or of a decision not to approve the nomination under s.140GB.

6. The applicant’s representative responded stating that at the time of lodging the application for review, the applicant was identified as a nominee in a nomination application lodged with the Department.  A copy of the acknowledgement of the nomination application received dated 9 July 2017 was provided with that response.

7. The sponsor identified in that nomination application had their application for approval as a standard business sponsor under s.140E(1) of the Act refused.  As such, the sponsor identified in the visa application is not an approved standard business sponsor under s.140E(1) of the Act.

8. The sponsor sought review with the Tribunal, however on 26 September 2018, the Tribunal found it did not have jurisdiction to review the delegate’s decision.  As such, at the time of the application for review there was not a valid and pending review of the decision to not approve the sponsor as a standard business sponsor.

9. A review of Tribunal records indicates that at the time of the application to the Tribunal the applicant was not sponsored by an approved sponsor and there was no valid and pending application for review of a decision not to approve the nomination under s.140GB of the Act.

10. The Tribunal finds that at the time the application for review of the decision to refuse to grant the visa was made, the applicant was not ‘sponsored’ by an ‘approved sponsor’ and no valid review of a decision not to approve the sponsor or nomination 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 under ss. 338 or 411 of the Act or r.4.02(4), it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

    DECISION

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

    Michelle East
    Member