Takizawa (Migration)

[2017] AATA 2696

Takizawa (Migration) [2017] AATA 2696 (7 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Konomi Takizawa
Miss Kayu Takizawa
Master Taiki Takizawa

CASE NUMBER:  1727509

DIBP REFERENCE(S):  BCC2017/97306

MEMBER:Bridget Cullen

DATE:7 December 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 07 December 2017 at 3:42pm

CATCHWORDS
Migration – Temporary Business Entry (class UC) – Temporary Work (Skilled) – Subclass 457 visa – Standard business sponsor – Nomination not approved – No pending application

LEGISLATION
Administrative Appeals Tribunal Act 1975 s29
Migration Act 1958 ss 5, 140E, 140E(1) ,140GB , 338, 338(2), 338(2)(d), 338(2)(d)(i)-(ii), 347, 411, 412
Migration Regulations 1994 rr 1.03, 2.58, 4.02(4) Schedule 2 cl 457.223(4)(a)

CASES

Ahmad v MIBP [2015] FCAFC 182

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 8 November 2017 for review of the refusal by the Department to grant a Temporary Business Entry (class UC) 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 Subclass 457 visa is reviewable in certain circumstances as set out in s.338(2) of the Act.

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 (Katzmann, Robertson and Griffiths JJ, 16 December 2015) (Ahmad) 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 9 November 2017, the Tribunal invited the Applicant to comment on whether a valid application had been made, as the Tribunal identified that that there was no pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E, nor was there a decision not to approve the nomination under s.140GB of the Act.

6. The Applicant replied on 23 November 2017, but did not respond in a meaningful way to the Tribunal’s invitation, and did not address the issue relating to jurisdiction.  However, the Applicant did indicate that “can ask my sponsoring company to lodge a fresh nomination upon request from the AAT.”  This indicates that the Applicant is aware that there is not a current nomination.

7. 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.

8. On the facts before the Tribunal here, this means that the Applicant was not sponsored by the prospective employer identified, Yukaz Pty Ltd, at the time the review application was lodged. There is no indication that the Applicant had another relevant sponsor or that there was any relevant sponsorship decision pending in this Tribunal.

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).

   DECISION

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

    Bridget Cullen
    Member