Uetake (Migration)

[2017] AATA 1768

Uetake (Migration) [2017] AATA 1768 (5 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Chika Uetake

CASE NUMBER:  1716255

DIBP REFERENCE(S):  BCC2017/1066706

MEMBER:Bridget Cullen

DATE:5 October 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 05 October 2017 at 11:50am

CATCHWORDS

Migration – Training (Class GF) visa – Subclass 407 (Training) – Migration zone – No nomination or sponsor application

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29

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

Migration Regulations 1994, r.4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 26 July 2017 by Ms Chika Uetake for review of a decision to refuse to grant her a Training (Class GF) (Subclass 407) 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 (the Regulations) 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 an application for a Subclass 407 visa is reviewable if an applicant made their review application while in the migration zone and they were sponsored or nominated (as required) for the grant of the visa: s.338(2) of the Act.

3. The Tribunal formed a preliminary view that Ms Uetake's application for review may not be valid. On 31 July 2017, the Tribunal wrote to Ms Uetake and invited her to comment on the validity of her application for review.

4. The invitation indicated that her review application might not be valid because, at the time her review application was lodged on 26 July 2017, she was not identified in a nomination under s.140GB of the Act that was approved or pending and nor was there a pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E of the Act, or a decision not to approve a nomination under s.140GB of the Act.

5. Ms Uetake did not respond to the Tribunal's invitation to comment on the validity of her Subclass 407 visa application.

6. Based on its review of Departmental records, the Tribunal finds that when Ms Uetake lodged her application for review with the Tribunal on 26 July 2017 she was not identified in a nomination under s.140GB of the Act that was approved or pending. Furthermore, when Ms Uetake made her review application, there was no pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E of the Act, or a decision not to approve a nomination under s.140GB of the Act at that time.

7. As the delegate's decision is not reviewable in these circumstances it follows that Ms Uetake's 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.

   Bridget Cullen
   Member