The Trustee for J & P Family Trust (Migration)

[2017] AATA 1198

The Trustee for J & P Family Trust (Migration) [2017] AATA 1198 (20 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for J & P Family Trust

CASE NUMBER:  1711775

DIBP REFERENCE(S):  BCC2016/4072821

MEMBER:Alison Mercer

DATE:20 July 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 20 July 2017 at 11:05am

CATCHWORDS

Migration – Nomination – Invalid application for refusal of nominated position – Reviewable decision relating to standard business sponsor – No reviewable decision

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29

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

Migration Regulations 1994, r 4.02(4)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 2 June 2017 for review of a decision by the Department to refuse to approve a nominated activity or position. 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. They include decisions to refuse visas of various kinds, including a decision to approve a nominated activity or position.

3. In this case, the review application lodged with the Tribunal on 2 June 2017 specified that it related to the refusal of a nominated activity or position made on 12 May 2017.  However, the attached decision record from the Department, made on 12 May 2017, relates to a decision to refuse to approve the applicant as a standard business sponsor.  It is stated in the notification letter for this decision that ‘as your application for approval as a sponsor has not been approved, any nomination applications that have been lodged with the Department in relation to this sponsorship application cannot be assessed.’

4. On 7 June 2017, the Tribunal wrote to Mr Jasbir Singh Hundal, trustee of the applicant, via his registered migration agent Mr Tanveer Singh, to invite him to comment on whether the applicant had validly lodged a review application with the Tribunal.  The Tribunal advised that a preliminary view had been formed that the review application had not been validly lodged, as the nomination application it sought to have reviewed was ‘otherwise finalised’ by the Department following the Department’s refusal to approve the applicant as a standard business sponsor, and thus there was no actual decision made by the Department in relation to refuse or approve the nomination application.  The Tribunal noted that as there was no nomination decision, it appeared that there were no grounds for the Tribunal to review.  Mr Hundal was invited to provide comments on behalf of the applicant in relation to this issue by 21 June 2017.  He was advised that any comments he provided on behalf of the applicant would be referred to a Tribunal Member, who would make a determination as to whether the review application was valid or not.

5. The Tribunal did not receive any response from Mr Hundal (or any other authorised officer of the applicant) or the agent by the due date.  It has received no further communications from any of them to the date of its decision (20 July 2017).

6. As noted above, the Department’s records indicate that the nomination application made by the applicant was ‘otherwise finalised’ (that is, not assessed by the Department) as a result of the Department’s decision to refuse to approve the applicant as a standard business sponsor. Thus, there is no formal decision to refuse a nominated activity or position by the Department in relation to the applicant.  The Tribunal notes that a separate review application was lodged with the Tribunal in relation to the Department’s decision to refuse to approve the applicant as a standard business sponsor, and that this review application appears to have been validly made, although it is yet to be determined by the Tribunal.

7. As there is no reviewable decision in relation to the nomination, it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Alison Mercer
   Member