Tran (Migration)

[2023] AATA 650

Tran (Migration) [2023] AATA 650 (18 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Quang Hieu Tran

CASE NUMBER:  2208145

HOME AFFAIRS REFERENCE(S):          BCC2021/571137

MEMBER:Alison Mercer

DATE:18 January 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 18 January 2023 at 3:27pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – no reviewable decision – not identified in an approved nomination – no pending reviews – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 140E, 140GB, 338, 347
Migration Regulations 1994 (Cth), r 4.02; Schedule 2, 482.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 3 June 2022 for review of a Class GK subclass 482 Temporary Skill Shortage 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 (Cth) (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 (Cth). Sections 338 and 411 of the Act and reg 4.02(4) of the Migration Regulations 1994 (Cth) 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 a subclass 482 Temporary Skills Shortage visa is reviewable under s.338(2) of the Act if the visa applicant made the visa application while in the migration zone and the decision was not made when the visa applicant was in immigration clearance or had been refused immigration clearance and had not subsequently been immigration cleared. In addition, one of the requirements in s.338(2)(d) must be met. Section 338(2)(d) provides as follows:

   (d)  if the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

   (i)  the non-citizen is, at the time the decision to refuse to grant the visa is made, identified in an approved nomination that has not ceased under the regulations; or

   (ii)  a review of a decision under section 140E not to approve the sponsor of the non-citizen is pending at the time the decision to refuse to grant the visa is made; or

   (iii)  a review of a decision under section 140GB not to approve the nomination of the non-citizen is pending at the time the decision to refuse to grant the visa is made; or

   (iv)  except if it is a criterion for the grant of the visa that the non-citizen is identified in an approved nomination that has not ceased under the regulations—the non-citizen is, at the time the decision to refuse to grant the visa is made, sponsored by an approved sponsor. 

4. The Tribunal has reviewed the Department’s records and notes that on 29 March 2022, the Department sent the applicant a s57 invitation to comment on information that the applicant was not identified in an approved subclass 482 nomination by his intended sponsor, Staff Services Employment Pty Ltd. As the applicant did not provide evidence of being the subject of an approved nomination, on 16 May 2022, the Department refused to grant the applicant a subclass 482 visa as he did not meet cl.482.212 of Schedule 2 to the Regulations.

5. The Tribunal is satisfied that at the time of the delegate’s decision to refuse to grant the visa, the applicant was not identified in an approved nomination that had not ceased. Nor was there a valid and pending application for review before the Tribunal of a decision not to approve the sponsor under s.140E of the Act, nor of a decision not to approve the nomination under s.140GB of the Act.  

6. The Tribunal sent a natural justice letter to the applicant via his agent on 6 June 2022 setting out its view that, due to the above, the applicant did not meet any of the subparagraphs of s.338(2)(d) and therefore it appeared that the Tribunal did not have jurisdiction to review the Department’s decision to refuse him a subclass 482 visa. The Tribunal invited the applicant to respond or comment by 20 June 2022.  However, no response was received by 20 June 2022 and the Tribunal has received no further communication from the applicant or his agent to date.

7. The Tribunal is satisfied, based on its finding in paragraph 5 above, that the applicant does not fall within s.338(2)(d)(i), (ii), or (iii). It further finds that s.338(2)(d)(iv) does not apply to him, as it is a criterion for the subclass 407 visa that the applicant is identified in an approved nomination. 

8. 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

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

   Alison Mercer
   Member