Xu (Migration)

[2019] AATA 142

Xu (Migration) [2019] AATA 142 (28 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lingkai Xu

CASE NUMBER:  1900190

DIBP REFERENCE(S):  BCC2018/4527152

MEMBER:Jennifer Cripps Watts

DATE:28 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 28 January 2019 at 1:12pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (class GK) visa – Subclass 482 Temporary Skill Shortage – no Tribunal-reviewable decision – sponsored by an approved sponsor – 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 Regulations 1994, Schedule 2 cl 482.212, rr 1.03, 2.58, 4.02

CASES

Ahmad v MIBP [2015] FCAFC 182          

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 4 January 2019 for review of a delegate of the Minister for Immigration (the delegate) to refuse the applicant’s Temporary Skill Shortage (class GK) Temporary Skill Shortage (Medium Term)(subclass 482) visa.  The applicant lodged his review application on 4 January 2019 and provided the Tribunal with a copy of the delegate’s decision to refuse his 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. They include decisions to refuse or cancel visas and a range of sponsorship and nomination decisions.

3. For an applicant who claims to be nominated by a standard business sponsor, a nomination of an occupation relating 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. 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. The circumstances under which such a decision is reviewable, relevant to this matter, is only where either:

   a.The applicant is identified in an approved nomination under s.140GB by an approved sponsor that has not ceased, including a nomination application that has not yet been determined, or an approved nomination, but not including 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

   b.There is a pending application for review of a decision not 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. When making the Subclass 482 visa application on 16 October 2018, the applicant indicated he was nominated for the position of Developer Programmer (ANZSCO 261312) by his sponsor VCT Multimedia Pty Ltd.  When his application was being assessed, the applicant was informed, before the delegate made the decision to refuse his visa, that he was not the subject of an approved nomination.  The applicant was invited to comment on this matter.  It is noted in the delegate’s decision that no response was received and that the applicant had not withdrawn his visa application.  The visa was refused because the applicant did not meet the requirements of cl.482.212(1) and, as a consequence, cl.482.212 was not met.

6. At the time the applicant’s review application was assessed, there was no information before the Tribunal that indicated the applicant was the subject of a nomination, or that there was a review pending relating to the nomination, or that a review of a decision not to approve the sponsor was pending.  On 4 January 2019, the Tribunal sent the applicant a natural justice letter informing him of these matters, specifically that it did not appear that he met either s.140GB or s.140E, and inviting him to comment on the validity of his review application, in writing, by 18 January 2019.  At the time of this decision, no response to the Tribunal’s natural justice letter has been received.

7. There is no evidence before the Tribunal that the applicant meets either s.140GB or s.140E of the Act.  Therefore, for the reasons above, the decision is not a Part 5-reviewable decision.

8. As the delegate’s decision is not reviewable under Parts 5 or 7 of the Act it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Jennifer Cripps Watts
   Member