Wu (Migration)

[2019] AATA 3938

Wu (Migration) [2019] AATA 3938 (17 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ko-Han Wu

CASE NUMBER:  1909794

DIBP REFERENCE(S):  BCC2019/55875

MEMBER:Mr S Norman

DATE:17 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 17 June 2019 at 12:25pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) – Subclass 482 – no valid nomination or sponsorship review pending – no approved nomination – no jurisdiction

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 29
Migration Act 1958 (Cth), ss 338, 347, 411, 412

Migration Regulations 1994 (Cth), r 4.02(4)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 18 April 2019 for review of a Department decision to refuse to grant a GK – Temporary Skill Shortage (Class GK) (subclass 482) 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.

3. The applicant was notified of the Department’s decision to refuse a subclass 482 visa on 8/4/19 via e-mail to the applicant's representative.  The merits review application was then lodged on 18/4/19, being within 21 calendar days of notification and with payment of the full review fee.

4. There were two prior nominations that identified the visa applicant (the applicant in this case) as a nominee. They were refused on 7/3/19 and 5/4/19 respectively. The visa applicant has also been identified in a third nomination lodged on 23/4/19 (the nominator’s sponsorship approval is valid from 23/03/17 to 23/03/22). The most recent nomination approval application remains pending with the Department.  

5. However, s.338(2)(d) of the Act requires that the visa applicant had either a valid nomination or sponsorship review pending or an approved nomination at the time of the Department delegate’s decision to refuse the visa (which decision was made on 8 April 2019).  Therefore, at the time of the Department decision to refuse the 482 visa, the visa applicant did not have either a valid nomination or sponsorship review pending or an approved nomination.

6. By letter of 1 May 2019, the Tribunal wrote to the applicant advising that it may not have jurisdiction in this matter pursuant to the aforementioned s.338(2)(d) issue. By migration agent email of 8 May 2019, it was said “we are instructed to concede to the invalidity of the application and will not be submitting further comments for the Registrar's consideration”.

7. That being said, based on the evidence before it, the Tribunal is satisfied the applicant did not have either a valid nomination or sponsorship review pending or an approved nomination at the time of the Department decision to refuse the visa. Therefore, the application for merits review of the visa is not valid under s.338(2)(d); and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Mr S Norman
   Member