Tseng (Migration)

[2017] AATA 1886

Tseng (Migration) [2017] AATA 1886 (17 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Yi-Ling Tseng
Ms Hsin-Yi Liu

CASE NUMBER:  1721534

DIBP REFERENCE(S):  BCC2016/1282804

MEMBER:Bridget Cullen

DATE:17 October 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 17 October 2017 at 9:35am

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Applicant not the subject of an approved nomination by a standard business sponsor

LEGISLATION

Migration Act 1958, ss 5, 29, 140E, 140GB, 338, 347, 411, 412

Migration Regulation 1994, r 1.03, r 2.58, r 4.02(4), Schedule 2, cl 457.223(4)(a)

CASES

Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 12 September 2017 for review of the refusal by the Department to grant the Applicants 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. In the visa application form, lodged on 24 May 2016, Ms Yi-ling Tseng was identified as the primary visa applicant.  Ms Hsin-Yi Liu, the defacto partner of Ms Tseng, was included as secondary applicant on the visa application. 

6. On 14 September 2017, the Tribunal invited the Applicants 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. The letter was sent to the Applicants’ appointed representative, a registered migration agent.

7. Initially, the Tribunal received a “Return to Sender” message in response to its 14 September 2017 invitation to comment.  As such, the Tribunal again wrote to the Applicants via their registered migration agent, and also telephoned the office of the registered migration agent.

8. On 18 September 2017, following several more phone calls by the Tribunal to the Applicants’ registered migration agent, the Tribunal was advised by the registered migration agent’s firm that the Tribunal’s 14 September 2017 letter and invitation to comment had been received.

9. The Applicants did not file any response to the Tribunal’s invitation to comment.

10. The Tribunal finds that, at the time the application to review the decision to refuse to grant the visas was made, the Applicants were not ‘sponsored’ by an ‘approved sponsor’ and no review of a decision not to approve the sponsor was pending. On the facts before the Tribunal here, this means that the Applicants were not sponsored by the prospective employer identified, J Shin Sen Pty Ltd, AFT J Shin Sen Unit Trust, at the time the review application was lodged. There is no indication that the Applicants had another relevant sponsor or that there was any relevant sponsorship decision pending in this Tribunal. Accordingly, the requirements of s.338(2)(d) were not met in respect of either Applicant.

11. 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

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

    Bridget Cullen
    Member