TSUI (Migration)

[2017] AATA 2794

TSUI (Migration) [2017] AATA 2794 (7 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Wai Man Tsui
Mrs Kit Ching Yu

CASE NUMBER:  1720953

DIBP REFERENCE(S):  BCC2016/3791791

MEMBER:Wan Shum

DATE:7 December 2017

PLACE OF DECISION:  Sydney

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

Statement made on 07 December 2017 at 3:44pm

CATCHWORDS

Migration – No jurisdiction - Temporary Business Entry (Class UC) - Subclass 457 (Temporary Work (Skilled)) - No approved sponsor – No approved nomination - No review of sponsorship refusal sought or pending

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

CASES

Ahmad v MIBP [2015] FCAFC 182

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The review application was lodged with the Tribunal on 7 September 2017. For the following reasons, the Tribunal has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

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.

3. A decision to refuse to grant a Subclass 457 visa may be reviewable if the applicant made the visa application while in the migration zone. However, where the applicant was sponsored or nominated as required by a criterion for the grant of the visa, the applicant must either be sponsored by an approved sponsor at the time the application for review of the visa refusal is made or an application for review of a decision not to approve the sponsor has been made but at the time the application for review of the visa refusal is made, review of the sponsorship decision is pending.

4. The applicant provided a copy of the decision to refuse the visa. The decision record refers to the Department refusing to approve his prospective sponsoring employer as an approved standard business sponsor and that the related nomination application was unable to be assessed. 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].

5. 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)).

6. On the material before it, the Tribunal does not have jurisdiction in this matter because the requirements of s.338(2)(d) have not been met. Neither of the applicants have been identified in a nomination application that has not yet been determined. Nor is there evidence that the prospective sponsoring employer had sought review of the decisions not to approve the sponsorship or nomination.

7. 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

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

   Wan Shum
   Member