Swieboda (Migration)

[2021] AATA 1483

Swieboda (Migration) [2021] AATA 1483 (12 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Krzysztof Stanislaw Swieboda

CASE NUMBER:  2102307

DIBP REFERENCE(S):  BCC2019/1660136

MEMBER:Phoebe Dunn

DATE:12 April 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 12 April 2021 at 1:59pm

CATCHWORDS

MIGRATION – Subclass 482 visa – applicant was not identified in a nomination under s.140GB of the Act that was approved and had not ceased – standard business sponsorship was withdrawn – no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29

Migration Act 1958, ss 140GB, 338, 347, 411, 412

Migration Regulations 1994, r 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 25 February 2021 for review of a decision to refuse a Subclass 482 visa application for the applicant. 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.

3. The applicant applied for the visa on 3 April 2019 and the primary decision to refuse that visa was made on 16 February 2021. As such, in circumstances where the applicant made the visa application while in the migration zone (as is the case here), and where it is a criterion for the grant of the visa that the applicant is ‘sponsored’ by an ‘approved sponsor’ (as is also the case here),  then at the time that the primary decision to refuse the visa is made for the applicant to have jurisdiction in this matter, the applicant must meet one of the following criteria:

   a.There must be an approved nomination identifying the applicant that has not ceased; or

   b.There must be a decision not to approve the sponsor under s.140E in respect of which there is a pending review application before the Tribunal; or

   c.There must be a decision to refuse the nomination under s.140GB pending review before the Tribunal (s.338(2)(d) of the Act and r.4.02(1A) of the Migration Regulations 1994 (the Regulations)).

4. The Tribunal formed the preliminary view that the Tribunal did not have jurisdiction in relation to this matter in respect of the primary applicant and by letter dated 2 March 2021, wrote to the applicant via their representative, inviting them to comment on the validity of the review application by 16 March 2021.  The Tribunal stated that it did not consider the application of the primary applicant was valid because at the time of the review application, the primary applicant was not identified in a nomination under s.140GB of the Act that was approved and had not ceased.  Further, the Tribunal’s letter stated that there was no valid and pending application for review with 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 at the time that the review application was made. The applicants were invited to comment on or respond to this information by 16 March 2021.  No comments or response was received from the applicant.

5. The Tribunal has reviewed the Departmental and Tribunal records which confirm that the applicant applied for the Subclass 482 visa on the basis of the nomination made by Epic Building Group Pty Ltd (the nominator) in respect of the applicant for the nominated position of Fibrous Plasterer (ANZSCO 333211), lodged on 3 April 2019 (the nomination).  However, on 2 December 2020, the standard business sponsorship in respect of the nominator was withdrawn and on 9 December 2020, the nominator withdrew the nomination. As a consequence, the applicant’s Subclass 482 visa application was refused by a delegate of the Minister on 15 February 2021 as there was no approved nomination.

6. The Tribunal notes that subclass 482.212(1) requires that the nomination identified in the visa application has been approved under s.140GB; the person who made the nomination was an approved sponsor (as defined) at  the time the nomination was approved; and the approval of the nomination has not ceased under r.2.75.  In this case the evidence before the Tribunal establishes that the nominator withdrew the nomination before the visa application was refused by the delegate and further that the nominator was no longer an approved sponsor at the time the visa was refused.  There is no information before the Tribunal to suggest there is a pending 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. 

7. The Tribunal finds that, at the time the decision to refuse to grant the visa was made, the applicant was not identified in an approved nomination that has not ceased, no review of a decision not to approve the sponsor of the applicant was pending, and no review of a decision not to approve the nomination of the applicant was pending. Accordingly, the requirements of s.338(2)(d) were not met.

8. 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).

9. 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

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

    Phoebe Dunn
    Member