Yan (Migration)

[2018] AATA 4701

Yan (Migration) [2018] AATA 4701 (28 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Huaijun Yan

CASE NUMBER:  1721165

DIBP REFERENCE(S):  BCC2016/3303740

MEMBER:Nicola Findson

DATE:28 November 2018

PLACE OF DECISION:  Perth

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

Statement made on 28 November 2018 at 5:51pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – 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 457.223(4)(a), 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 10 September 2017 for review of a decision to refuse the applicant a Temporary Business Entry (Temporary Work) (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 (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 refusing to grant a Temporary Business Entry (Class UC) 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 sponsorship or nomination application has been made but, at the time the review application is made, review of the sponsorship or nomination application decision is pending.

3. 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].

4. Therefore, such a decision is only reviewable where, at the time the review application is made, either:

   • the applicant is identified in a nomination under s.140GB of the Act 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 ceased (s.338(2)(d)(i)); or
   • there is a pending application for review of a decision not to 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. The applicant provided to the Tribunal a copy of the delegate’s decision record.  When making the visa application the applicant indicated that he was sponsored by AUSERVICES Pty Ltd. The delegate records that AUSERVICES Pty Ltd’s application for sponsorship approval was refused on 25 May 2017. As AUSERVICES Pty Ltd was not an approved standard business sponsor the nomination application was not assessed and otherwise finalised.  The delegate refused to grant the visa because the applicant was not the subject of an approved nomination.

6. The Tribunal has checked the Department’s electronic records which confirm that the sponsorship application lodged by AUSERVICES Pty Ltd was refused on 25 May 2017.  It has also checked the records of the Department and Tribunal confirming that there is no evidence to suggest an approved sponsor has since, prior to the review application being lodged, made another nomination application sponsoring the applicant. Nor are there any relevant matters with a review pending.

7. The Tribunal wrote to the applicant on 29 October 2018, seeking his comments on its preliminary view that it does not have jurisdiction by 12 November 2018. The applicant’s representative responded on 11 November 2018, indicating that while the applicant “felt it was unfortunate”, he had no comments to provide in relation to the validity of the review application.

8. The review application was lodged on 10 September 2017.  The Department’s records confirm that the nomination application lodged by AUSERVICES Pty Ltd, of which the applicant was the subject, was not assessed and otherwise finalised because AUSERVICES Pty Ltd sponsorship approval application was refused on 25 May 2017.  The records of the Department and the Tribunal confirm that on the date the review application was lodged, the applicant was not identified in a nomination under s.140GB by an approved sponsor, or a nomination application that had not yet been determined, or an approved nomination that had not ceased: s.338(2)(d)(i).  There is no pending application for review of a decision not to approve the sponsor under s.140E, nor a pending application for review of a decision not to approve a related nomination under s.140GB: s.338(2)(d)(ii).

9. Therefore, the decision is not reviewable.

10. As there is no reviewable decision it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

    DECISION

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

    Nicola Findson
    Member