Zalesky (Migration)

[2017] AATA 208

Zalesky (Migration) [2017] AATA 208 (17 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ales Zalesky

CASE NUMBER:  1621585

DIBP REFERENCE(S):  BCC2016/3505033 CLF2017/5755

MEMBER:Mary-Ann Cooper

DATE:17 February 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 17 February 2017 at 3:17pm

CATCHWORDS

Migration – Temporary Work (Class GC) Training and Research visa – Subclass 402 – Jurisdiction issue – Application made while in migration zone – Applicant not identified in nomination application – Time of application – Later lodged nomination application cannot be considered

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 140, 337, 338, 347, 411, 412
Migration Regulations 1994, r 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 16 December 2016 for review of a decision to refuse a Temporary Work (Class GC) Training and Research (Subclass 402) 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. For onshore visa applications, the Tribunal has jurisdiction to review decisions to refuse to grant a Subclass 402 visa in circumstances as set out in s.338(2). Paragraphs (a) to (c) of s.338(2) apply in all cases, requiring that the visa is one which could be granted to a person in the migration zone, and the person made the application in the migration zone after being immigration cleared. A subclass 402 visa is one which can be granted while a person is in the migration zone and, on the basis of other information before the Tribunal, it is satisfied that the applicant made the application while in the migration zone after being immigration cleared. The application therefore meets s.338(2)(a) to (c).

4. In addition, as this is a prescribed temporary visa for the purposes of s.338(2)(d)[1], and it is a criterion for its grant that the non-citizen is sponsored by an approved sponsor[2], the requirements in s.338(2)(d) must also be met for the decision to be reviewable.

   [1] R.4.02(1A)

   [2] Schedule 1 Item 1233(4) prescribed that applicants under the Occupational Trainee stream must be nominated by a person who is approved or has applied for approval as a training and research sponsor, or an occupational trainee sponsor.

5. For the decision to be MRD-reviewable under s.338(2)(d)(i) the visa applicant must be “sponsored by an approved sponsor” at the time the review application regarding the decision to refuse to grant the subclass 402 visa is made. For review applications made on or after 14 September 2009, the meaning of ‘sponsored’ includes being identified in a nomination under section 140GB of the Act.[3] 

   [3] Section 337 of the Act and subregulation 4.02(1AA) of the Regulations

6. For the decision to be MRD-reviewable under s.338(2)(d)(ii), “an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.”

7. In this context, the Tribunal has had regard to the decision of the Full Federal Court in Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182. In that judgement the Full Federal Court held that for the purposes of s338(2)(d)(i) the phrase “sponsored by an approved sponsor” includes not only a person with an approved sponsor who holds an approved nomination but also a person identified in a nomination application under s140GB. The Full Court also held that for the purposes of s.338(2)(d)(ii) the expression “decision not to approve the sponsor” includes both the approval of the sponsor under s140E and the approval of the nomination under s140GB. Therefore, the Tribunal has jurisdiction to review a decision to refuse a subclass 402 visa application under s.338(2)(d), if, at the time the review application was lodged, one of the following circumstances are met:

   -the visa applicant is identified an approved nomination by an approved sponsor (under s338(2)(d)(i));

   -the visa applicant is identified in a pending nomination application by an approved sponsor that is under consideration by the Department (under s338(2)(d)(i));

   -there is a pending application for review of a decision not to approve the sponsor under s. 140E (under s.338(2)(d)(ii)); or

   -there is a pending application for review of a decision not to approve the nomination application under s.140GB (under s.338(2)(d)(ii)).

8. As outlined in its letter inviting submissions on jurisdiction, sent to the applicant on 25 January 2017, the evidence before the Tribunal indicates that at the time the review application was lodged on 16 December 2016, the applicant was not identified in a nomination under s.140GB of the Act that was approved or pending with the Department, nor was there a pending application for Tribunal review of either a decision not to approve a sponsor under s.140E, or a decision not to approve a nomination application under s.140GB. The Tribunal allowed until 8 February 2017 for a response.

9. On 8 February 2017 the applicant responded through his representative, submitting that the Tribunal has jurisdiction because the applicant is sponsored by an approved sponsor and is identified in a nomination that is currently before the Department.

10. Specifically it was claimed :

    “The assessment of validity of application supposed to be made at the time of application or within reasonable time….

    In our view time of application extends in this case to the moment of the AAT Tribunal Member making his or her decision on validity of application for merit review (timeframe given 8.02.2017). The Tribunal makes its assessment of validity of appeal 1621585 by Mr. Ales Zalesky within reasonable time therefore all evidences available by the time of assessment should have be taken (sic) into consideration as evidences available at the time of appeal application. We claim that the application for review is valid as nomination EGODSPOKBW is pending at the time of the appeal’s application validity assessment.”

11. As the Tribunal understands this submission, it contends that a later nomination application made in respect of the applicant by the sponsor on 7 February 2017, as attached to the submission, can be taken into account in determining the review application’s validity. In this context the Tribunal notes that s.338(d)(i) and (ii) both specifically require the relevant state of affairs exists “at the time the application to review the decision is made.” There is no scope, in the terms of the legislation as to what constitutes a “reviewable decision”, for a later lodged nomination application to be taken into account.

12. The Tribunal considers this view is reinforced by the comments of the Full Federal Court in Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182. In this context the Tribunal relies on the court’s comments in Ahmad at paragraph 113 that it was “not disposed to accept …that s338(2)(d)(i) is satisfied where, at the time of the application for review of the visa decision, the visa applicant had previously been identified in a nomination, even if the nomination decision were adverse (and an application for review of that decision had not been made) or the nomination had by then lapsed.”

13. The Tribunal makes the following findings based on the information before it:

    ·     Pacific Center Planet of Adventures Pty. Ltd. (the Center) was approved as a sponsor for the period 7 March 2016 to 7 March 2019.

    ·     On 21 October 2016 the Center made an application for an approval of an occupational trainee nomination in respect of the applicant.

    ·     That application was refused 25 October 2016.

    ·     On 18 November 2016 the Center made another application for approval of a nomination in respect of the applicant.

    ·     That application was refused on 13 December 2016.

    ·     The applicant’s visa application was refused on 13 December 2016.

    ·     On 16 December 2016, the applicant lodged an application for review of the delegate's decision to refuse to grant his subclass 402 visa.

    ·     As at 16 December 2016 there were no pending Tribunal review applications lodged by the Center of either the decision made on 25 October or that made on 13 December 2016 to refuse the nomination approval applications.

    ·     As at 16 December 2016 there was no pending nomination approval application in respect of the applicant with the Department.

14. Therefore, on the basis of the material before the Tribunal, at the time the application to review the visa refusal decision was made on 16 December 2016, the applicant was not identified in either an approved or a pending nomination by an approved sponsor.

15. It follows that, applying the reasoning in Ahmad’s case, the Tribunal finds that the decision of the Department’s delegate to refuse the applicant’s subclass 402 visa application is not a reviewable decision for the purposes of s.338(2)(d)(i).

16. Further, at the time the review application was lodged, there was no pending review by the Center of the decisions to refuse the nomination approval applications nor was there a pending review application of a decision not to approve the Center’s sponsorship – that sponsorship having already been approved as noted above.

17. Therefore, also applying the reasoning in Ahmad’s case, the Tribunal finds that the decision of the Department’s delegate to refuse the applicant’s subclass 402 visa application is not a reviewable decision for the purposes of s.338(2)(d)(ii).

18. The Tribunal is further satisfied that the relevant decision of the delegate is not an MRD-reviewable decision in relation to the applicant under any of the other subparagraphs of s.338 and r.4.02(4).

19. 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

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

    Mary-Ann Cooper
    Member