Williams (Migration)

[2018] AATA 4032

Williams (Migration) [2018] AATA 4032 (15 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ryan James Williams

CASE NUMBER:  1821983

DIBP REFERENCE(S):  BCC2017/1929528

MEMBER:R. Skaros

DATE:15 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 15 October 2018 at 1:56pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – no Tribunal-reviewable decision – sponsored by an approved sponsor – pending nomination for a different subclass – approved nomination of an occupation – no jurisdiction   

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 5, 140, 338, 347, 411, 412
Migration Legislation Amendment (Temporary Skills Shortage Visa and Complementary Reforms) Regulations 2018 Schedule 13 cl 6704
Migration Regulations 1994, Schedule 2 cl 457.223(4)(a), rr 1.03, 2.58, 2.72, 2.75, 4.02

CASES

Ahmad v MIBP [2015] FCAFC 182

Kandel v Minister for Immigration & Anor [2015] FCCA 2013

Minister for Immigration and Citizenship v Islam [2012] FCA 195

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 30 July 2018 for review of a decision to refuse to grant the applicant a Temporary Business Entry (Class UC) 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 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 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: s.338(2)(d) of the Act and r.4.02(1A) of the Migration Regulations 1994 (the Regulations).

3. The term, ‘sponsored’, is relevantly defined as including being identified in a nomination under s.140GB of the Act: s.337 of the Act and r.4.02(1AA) of the Regulations. The term, ‘approved sponsor’, is defined in s.5(1) of the Act as a person who has been approved by the Minister under s.140E of the Act in relation to a class prescribed by r.2.58 of the Regulations and whose approval has not been cancelled or otherwise ceased to have effect, in relation to that class.

4. 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. The applicant applied for the 457 visa on the basis of a nomination by AFM Masonry Pty Ltd (the sponsor). That nomination was approved by the Department on 24 June 2017. By operation of law, that nomination ceased to be in effect on 24 June 2018, being 12 months after the day on which the nomination is approved.[1]

   [1] See r.2.75(2)(b) as in force immediately before 18 March 2018 as provided for in cl.6704(14) to Schedule 13 of the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (F2018L00262).

7. Departmental electronic records indicate that the sponsor lodged a further nomination (Class GK Subclass 482 Medium Term) with the Department on 30 July 2018 in which the applicant was identified. On the same day the applicant applied for review of the decision refusing to grant the applicant the Subclass 457 visa. Although the Subclass 482 nomination was pending at the time of the application for review, the Tribunal formed the preliminary view that it may not have jurisdiction in this case because the pending nomination was not a nomination on which the applicant could rely to meet the requirements in cl.457.223(4)(a) for the grant of the Subclass 457 visa, and in these circumstances the applicant may not be ‘sponsored’ as required by s.338(2)(d).

8. On 14 August 2018, the Tribunal wrote to the applicant and invited the applicant to comment on the validity of the application for review. In response, the Tribunal received submissions from the representative on 27 August 2018, 30 August 2018 and 5 September 2018. The Tribunal also received supporting documents, including a copy of the nomination application for the Temporary Skill Shortage (Subclass 482) visa and the notice of decision to approve the nomination for a Subclass 482 visa. The submissions set out the history of the visa application and nominations made by the sponsor, which are consistent with the information on the Department’s electronic records as set out above.

9. The submissions refer to s.140E, s.140GB and s.338(2)(d) of the Act and extracts from the following decisions, Minister for Immigration and Citizenship v Islam [2012]FCA 195, Kandel v Minister for Immigration & Anor [2015] FCCA 2013 and Ahmad v Minister for Immigration and Boarder Protection [2015] FCAFC 182. The essence of the representative’s submission is that as the applicant had a pending nomination by an approved sponsor under s.140GB(1)(a)(i) of the Act at the time of the application for review, the decision is reviewable under s.338(2)(d) of the Act. It was submitted that there is nothing in the legislation or case law which requires the pending nomination to be in respect of a 457 visa or capable of supporting a 457 visa.

10. It is not in dispute that the nominating employer was an approved sponsor under s.140E of the Act at the time of the application for review. It is also not in dispute that at the time of the application for review, there was a pending nomination in which the applicant was identified as the nominee. The Tribunal notes however that the nomination lodged by the sponsor, a copy of which was provided to the Tribunal, was in relation to a Temporary Skilled Shortage (Subclass 482) visa and in that nomination it was indicated that the applicant was not the holder of a Subclass 457 or 482 visa and had not applied for a Subclass 482 visa.

11. The Tribunal also notes that the cases referred to in the submissions were in relation to nominations made under s.140GB of the Act in respect of Subclass 457 visas and on which the applicants in those cases could rely to meet the nomination requirements in cl.457.223(4)(a).

12. In the Tribunal’s view, the relevant provisions and case law do not support the construction, as suggested by the representative, that any pending nomination made under s.140GB of the Act is sufficient for the Tribunal to find jurisdiction.

13. Section 140GB of the Act provides for an approved sponsor to nominate an applicant, or proposed applicant, “for a visa of a prescribed kind”. This indicates that a nomination under s.140GB must be in relation to a particular type of visa. In this case, the nomination made under s.140GB of the Act that was pending at the time of the application for review, was in relation to a Subclass 482 visa. The Tribunal considers that it would be inconsistent with the purpose of s.338(2)(d) for the Tribunal to find jurisdiction on the basis that the applicant had a nomination pending at the time of the application for review in circumstances where that nomination can never support the grant of the visa sought.

14. A nomination of an occupation made on or after 18 March 2018 can only be made in relation to the holder of a Subclass 457, Subclass 482 visa or an applicant or proposed applicant for a Subclass 482 visa: r.2.72(1)(b). At the time the 482 nomination was lodged, on 30 July 2018, the applicant did not hold a 457 visa, it is therefore not for the purpose of supporting the continued holding of a 457 visa. Nor is that nomination capable for supporting the grant of the applicant’s Subclass 457 visa. The Tribunal therefore finds that, at the time of the application for review, the applicant was not identified in a relevant nomination by an approved sponsor as required by s.338(2)(d)(i).

15. There was also no 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).

16. Given the above, the Tribunal finds that the decision is not reviewable under s.338(2) or under any of the other subparagraphs of s.338 and r.4.02(4).

17. 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

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

    R. Skaros
    Member