Stukalova (Migration)

[2018] AATA 2391

Stukalova (Migration) [2018] AATA 2391 (21 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Evgeniya Stukalova
Miss Angelina Stukalova

CASE NUMBER:  1811573

DIBP REFERENCE(S):  BCC2017/476040

MEMBER:Mary Sheargold

DATE:21 May 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 21 May 2018 at 12:32pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Sponsored by an approved sponsor – Standard business sponsor

LEGISLATION

Migration Act 1958, ss 5, 140, 337, 338,
Migration Regulations 1994, Schedule 2 cl.457.223, rr 1.03, 2.58, 2.72, 2.76, 4.02

CASES

Ahmad v MIBP [2015] FCAFC 182

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 23 April 2018 for review of a visa refusal for a Subclass 457 visa. 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 457 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. 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].

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 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)).

6. On 11 May 2018, the applicants’ representative made submissions to the Tribunal indicating that a nominator lodged an application for sponsorship for a Subclass 482 visa for the applicants on 23 April 2018, the same day that this review application was lodged. The Tribunal notes that an application for approval of a nomination for a Subclass 482 visa made after 18 March 2018 cannot be relied upon for an outstanding Subclass 457 visa application made prior to 18 March 2018: r.2.72(1)(b) states that r.2.72 applies in relation to a person who, under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following:

   i.a holder of a Subclass 457 (Temporary Work (Skilled)) visa;

   ii.a holder of a Subclass 482 (Temporary Skill Shortage) visa;

   iii.an applicant or proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.

7. The Tribunal finds that the applicants do not fit within any of the classes of persons under r.2.72(1)(b) set out above, because they do not hold a Subclass 457 visa or Subclass 482 visa, nor are they an applicant or proposed applicant for a Subclass 482 visa.

8. Therefore, 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.

9. 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).

10. 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

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

    Mary Sheargold
    Member