Tuomola (Migration)

[2018] AATA 625

Tuomola (Migration) [2018] AATA 625 (12 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Antti Ilmari Tuomola
Miss Jenna Jasmin Ronimus

CASE NUMBER:  1801779

DIBP REFERENCE(S):  BCC2016/3782765

MEMBER:Denise Connolly

DATE:12 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 12 March 2018 at 3:38pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) –
Submitted a new sponsorship application – Applicant not identified in the nomination by an ‘approved sponsor’ – Decision is not reviewable

LEGISLATION

Administrative Appeals Tribunal Act 1975 s 29
Migration Act 1958, ss 5, 140E, 140GB, 338, 347, 411, 412
Migration Regulations 1994, rr 1.03, 2.58, 4.02 Schedule 2 cl 457.223

CASES
Ahmad v MIBP [2015] FCAFC 182

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 23 January 2018 for review of a decision to refuse to grant the applicants Temporary Business Entry (Class UC) visas.  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 refusing to grant a Temporary Business Entry (Class UC) visa is reviewable if the applicant made the visa application while in the migration zone and either the applicant is 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 sponsorship or nomination application has been made but, at the time the review application is made, review of the sponsorship or nomination application decision is pending.

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. Therefore 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 ceased (s.338(2)(d)(i)); or
   • there is a pending application for review of a decision not to approve the 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. The visa applicants lodged the visa application on 11 November 2016. The applicants applied for the visa on the basis of sponsorship by C Loupos & M Loupos & P Loupos and S Loupos who had applied for approval as a standard business sponsor on 11 November 2016 (that application was refused on 22 May 2017). A nomination application, of which the first named applicant (the applicant) was the subject, had also been lodged and it was ‘otherwise finalised’ by the delegate on 26 July 2017. Applications for approval as a standard business sponsor and nomination approval were lodged on 28 August 2017. On 1 December 2017 the sponsorship application was refused and the nomination application was ‘otherwise finalised’.  The applicants’ visas were refused on 18 January 2018 on the basis that the applicant was not the subject of an approved nomination that had not ceased.

6. The applicants lodged their review application on 23 January 2018. As, according to the Department’s records, the applicant was not the subject of an approved nomination, or the subject of a nomination application not yet determined, and there was no evidence before the Tribunal that there was a pending application for review of a decision not to approve the sponsor, or a pending application for review of a decision not to approve the nomination under s.140GB, the Tribunal formed the preliminary view that the review application was not valid. It wrote to the applicants on 16 February 2018 seeking their comments on this view.

7. On 6 March 2018 the applicant’s representative provided written submissions advising that the sponsor had submitted a new sponsorship application (TRN EGOHHHN3P5) and nomination application (TRN EGOHKINIOB) after an earlier nomination application (TRN EGOHHJNCMK) was reported by the Department’s Technical Support Unit as being corrupted. He also advised that the sponsor had previously been an approved sponsor but that sponsorship approval had lapsed.  He also advised that the sponsorship application was refused because a former representative had failed to provide the financial documents sought by the delegate. He asserted that the new sponsorship and nomination applications address the issues relating to the prior applications. As a consequence there are now sponsorship and nomination applications pending,  and the new sponsorship application (TRN EGOHHHN3P5) and nomination application (TRN EGOHKINIOB) were submitted prior to the Tribunal’s decision on the application.

8. The Tribunal has obtained information from the Department’s electronic records which confirms that the sponsorship application TRN EGOHHHN3P5 was lodged on 2 March 2018 and the nomination application TRN EGOHKINIOB was lodged on 6 March 2018. Both were lodged after the review application was lodged on 23 January 2018, the relevant date in the Tribunal’s consideration of whether it has jurisdiction.

9. The Tribunal has considered the information provided by the applicant’s representative but it does not demonstrate that s.338(2)(d) has been met. While there are subsequent applications made with the Department, at the time of the application for review the applicant was not identified in a nomination by an ‘approved sponsor’ as required by s.338(2)(d)(i), nor was there a pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E or a decision not to approve the nomination under s.140GB of the Act, as required by s.338(2)(d)(ii). Therefore the decision is not reviewable.

10. 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

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

    Denise Connolly
    Member