Takahashi (Migration)

[2019] AATA 2100

Takahashi (Migration) [2019] AATA 2100 (3 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kensaku Takahashi

CASE NUMBER:  1826962

DIBP REFERENCE(S):  BCC2018/2451125

MEMBER:Ian Berry

DATE:3 April 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 03 April 2019 at 3:26pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – no approved or pending nomination at time of review application – no pending application for review – not a reviewable decision – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 338, 347, 411, 412
Migration Regulations 1994 (Cth), r 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 14 September 2018 for review of a decision not to grant the applicant’s (Mr Takahashi) 482 visa application. 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 (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. A decision to refuse Mr Takahashi’s 482 visa application is reviewable if Mr Takahashi’s sponsor’s application (which identified Mr Takahashi) was either approved or the subject of a review which was pending at the time he made his review, but is not reviewable in the circumstances of this case because, at the time of making his review, Mr Takahashi was not sponsored or nominated and no nomination application was pending.

4. On 8 March 2019 the Tribunal wrote to Mr Takahashi, inviting him to provide information about the Tribunal having the view that his application is invalid. Mr Takahashi was informed that at the time he applied for his review on 14 September 2018, he was neither identified in a nomination under s. r.140GB of the Migration Act 1958 that was either approved or pending, nor was there a valid and pending application for review before the Tribunal.

5. Mr Takahashi was invited to make comments on whether a valid application had been made by him and should he wish to do so, make comment in writing before 22 March 2019.

6. Mr Takahashi responded through his migration representative who by email dated 22 March 2019, attached a number of documents all of which concerned Mr Takahashi’s sponsor Noa Corporation Pty Ltd having made a further nomination application identifying Mr Takahashi. It was approved on 19 February 2019. An explanation was provided in the attached documents as to how Mr Takahashi’s sponsor had its first nomination application rejected with a subsequent nomination application being approved.

7. However, the 22 March 2019 email and attachments did not address the “no jurisdiction issue”.

8. Having considered Mr Takahashi’s submission, the Tribunal finds that it does not have jurisdiction to consider his review application for the reasons given.

   DECISION

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

   Ian Berry
   Member