Vidmar (Migration)

[2018] AATA 2824

Vidmar (Migration) [2018] AATA 2824 (15 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zlatko Vidmar
Ms Jasna Vidmar

CASE NUMBER:  1813692

DIBP REFERENCE(S):  BCC2017/4665173

MEMBER:Peter Emmerton

DATE:15 June 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 15 June 2018 at 4:15pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Sponsored by an approved sponsor – Standard business sponsorship expired – No Tribunal-reviewable decision – No jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 5, 140, 338, 347, 411, 412
Migration Regulations 1994, Schedule 2, cl 457.223, rr 1.03, 2.58, 2.75, 4.02

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 11 May 2018 for review of a decision to

   refuse to grant the applicant a Class UC subclass 457 Temporary Work (Skilled) visa. The visa was refused on 24 April 2018. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

1. 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.

1. A decision refusing to grant a Class UC subclass 457 visa is reviewable if the applicant

   made the visa application while in the migration zone andeither the applicant issponsored by an approved sponsor at the time that the application for review of the visa refusal is made, or an application for review of a decision not to approve the sponsor or nomination application has been made but at the time that the application for review of the visa refusal is made, review of the sponsorship or nomination application decision is pending.

1. 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 must have been made by a person who was a standard business sponsor at the time that 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 Minister for Immigration and BorderProtection [2015] FCAFC 182 (Katzmann, Robertson and Griffith JJ, 16 December 2015) (Ahmad) at [95] – [96].

1. 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 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)).

1. The Department’s records indicate that the applicant applied for the subclass 457 visa on the basis of a nomination by Costas’ Pty Ltd. The records further indicate that Costas’s Pty Ltd’s standard business sponsorship had expired on 12 December 2017. Regulation 2.75 (2)(d) states that the approval of a nomination ceases 3 months after the day on which the person’s approval as a standard business sponsor ceases. Therefore the approval of the nomination ceased on 12 March 2018. 

1. Accordingly, the Tribunal is satisfied that, at the time that the applicants applied for review to the Tribunal on 11 May 2018 in relation to the visa refusal decision, they were not the subject of a pending nomination application with the Department, or an approved nomination under s.140GB. 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.

2. On 18 May 2018, the Tribunal wrote to the applicants inviting them to comment on its preliminary view that his review application was not valid. They were given until 1 June 2018 to provide written comments. The applicant did not provide any comments by 1 June 2018, and the Tribunal has received no further communication from them to date.

1. The Tribunal therefore finds that, 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) or 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). Accordingly, the decision is not reviewable.

2. As the delegate’s decision is not reviewable in these circumstances, it follows that the application for review was not properly made and that the Tribunal does not have jurisdiction in this matter.

DECISION

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

Peter Emmerton
Member