Zhou (Migration)

[2018] AATA 5950

Zhou (Migration) [2018] AATA 5950 (26 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Xihui Zhou
Mr Peter Haolin Zhou

CASE NUMBER:  1819229

DIBP REFERENCE(S):  BCC2017/1005764

MEMBER:R. Skaros

DATE:26 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 26 July 2018 at 3:43pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Temporary Work) (Class UC) visa – Subclass 457 – standard business sponsor – sponsor’s nomination for occupation ceased after 12 months – no further nomination application – applicant not identified in a nomination – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 140E(1), 140GB, 338(2)(d)

Migration Regulations 1994 (Cth), r 2.75(2)(b), Schedule 2, cl 457.223(4)(a)

CASE

Ahmad v MIBP [2015] FCAFC 182

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 2 July 2018 for review of a decision to refuse to grant the applicants Temporary Business Entry (Temporary Work)(Class UC) Subclass 457 visas.  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 the grant of a Temporary Work 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.

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. 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)).

5. In this case the applicant applied for the visa on the basis of a nomination by Yolo W Pty Ltd ATF MW Toolbox Trailer Manufacturing Unit Trust. The nomination in relation to the applicant was approved by the Department on 21 April 2017. By operation of r.2.75(2)(b), as in force immediately prior to 18 March 2018, that nomination ceased on 21 April 2018, being 12 months after the day on which the nomination was approved. The application for the 457 visas was refused because the applicant was not the subject of a current approved nomination at the time of the delegate’s decision.

6. When applying for review, the applicant did not provide any evidence, and there is no information before the Tribunal, to suggest that another nomination in relation to the applicant was made by an approved sponsor and was pending at the time of the review. 

7. On 9 July 2018, the Tribunal wrote to the applicants and invited them to comment on the validity of the application for review. On 9 July 2018, the representative sent an email to the Tribunal confirming that the nomination in relation to the applicant, which was only valid for 1 year, had expired before the Department made the decision. The representative indicated that the nomination was lodged at the same time as the visa application and queried whether that made the application valid. Information on the Tribunal’s file also indicates that the representative called the Tribunal on 10 July 2018 seeking clarification on the jurisdiction issue, which was further explained by the case officer.

8. The fact that the nomination and visa application were lodged with the Department at the same time does not have any bearing on the validity of the application for review. The relevant point in time when assessing validity is when the application for review is lodged. Having considered the information before it, the Tribunal finds that at the time of the application for review the applicant was not identified in a nomination under s.140GB by an approved sponsor that was approved or pending. There is also nothing before the Tribunal to indicate that at the time of the review there was 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 140GB. For these reasons, the decision is not reviewable.

9. 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

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

    R. Skaros
    Member