Kidd (Migration)

[2018] AATA 3349

Kidd (Migration) [2018] AATA 3349 (1 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Stephen Kidd

CASE NUMBER:  1819305

DIBP REFERENCE(S):  BCC2017/1441384

MEMBER:Warren Stooke AM

DATE:1 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 01 August 2018 at 10:27am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – no Tribunal-reviewable decision – sponsored by an approved sponsor – no jurisdiction    

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 5(1), 140, 338, 347, 411, 412
Migration Regulations 1994, Schedule 2 cl 457.223(4), rr 2.58, 4.02

CASES

Ahmad v MIBP [2015] FCAFC 182

Dyankov v Minister for Immigration and Border Protection [2017] FCAFC 81         

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 3 July 2018 for review of a decision to refuse a Temporary Business Entry (Class UC) Temporary Work (Skilled) (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 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. A decision to refuse to grant a Subclass 457 visa is a reviewable decision under Part-5 of the Migration Act 1958 (the Act) in certain circumstances.

4. These are: if the applicant made the visa application while in the migration zone and, where it is a criterion for the grant of the visa that the applicant is 'sponsored' by an 'approved sponsor', 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: s.338(2)(d) of the Act and r.4.02(1A) of the Migration Regulations 1994 (the Regulations).

5. The term 'sponsored' is relevantly defined as including being identified in a nomination under s.140GB of the Act: s.337 of the Act and r.4.02(1AA) of the Regulations.  The term 'approved sponsor' is defined in s.5(1) of the Act as a person who has been approved by the Minister under s.140E of the Act in relation to a class prescribed by r.2.58 of the Regulations and whose approval has not been cancelled or otherwise ceased to have effect, in relation to that class; or a person (other than the Minister) who is party to a 'work agreement'.

6. For an applicant who claims to be nominated by a standard business sponsor, a nomination of any 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) of Schedule 2 to the Regulations.  Therefore it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor and it follows that s.338(2)(d) applies to this review application: Ahmad vMIBP [2015] FCAFC 182 (Katzmann, Robertson and Griffiths JJ, 16 December 2015) (Ahmad) at [95] – [96].

7. Therefore, a decision is reviewable where, at the time the review application is made, or within the time for applying for review, either: the Subclass 457 visa 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.

8. It does not include a nomination that has been refused with no review sought 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 sponsor as a 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).

9. On 27 June 2018 the Department refused the visa on the basis that the applicant was not the subject of an approved nomination which had not ceased.

10. This application for review was lodged on 3 July 2018 and a copy of the primary decision was provided to the Tribunal.  Department records confirm that no further nominations were lodged in respect of the applicant within the prescribed period.

11. Therefore the applicant was not, at the time the review application was lodged on 3 July 2018, the subject of a nomination made by a person who was a standard business sponsor which was not finally determined by the department or with review of the refusal decision lodged with the Tribunal within the prescribed period.

12. On 10 July 2018, the Tribunal sought the applicant’s written comments on the question of its jurisdiction by 24 July 2018.  No response has been received.

13. The Tribunal has considered the applicant's circumstances in light of current case law and the Full Federal Court authority in Ahmad.  In that case, the Full Court expressly declined to accept the submission “that s 338(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”.  These obiter comments were approved by the Full Federal Court in Dyankov v Minister for Immigration and Border Protection [2017] FCAFC 81 at [59] where it was found that the preferable construction of the words “sponsored by an approved sponsor” in s.338(2)(d)(i) did not cover a situation in which a nomination under s.140GB has been refused and review had not been sought of the refusal of the nomination. The Tribunal considers this view is relevant to the applicant's circumstances where, at the time of review application, there was no nomination.

14. Specifically, at the time of this review application, the Tribunal finds that the applicant was not identified in a nomination by a sponsor which had been approved or was pending.

15. Therefore, the Tribunal has no jurisdiction under s.338(2)(d)(i).

16. Further, at the time of this review application, the Tribunal finds that there was neither a pending application for review of a decision not to approve the standard business sponsor under s.140E, nor a pending review of a decision not to approve the nomination under s.140GB.

17. Therefore, the Tribunal has no jurisdiction under s.338(2)(d)(ii).

18. It follows that the decision for which the applicant applied for review is not reviewable in the circumstances of this case because, at the time the review application was lodged, the applicant was not identified in a nomination under s.140GB of the Act by an approved sponsor, nor was there any pending application for review before the Tribunal of either a decision not to approve the sponsor or a decision not to approve the nomination under s.140GB.

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

20. As no reviewable decision had been made at the time the review application was lodged it follows that the application was not properly made and the Tribunal does not have jurisdiction in this matter.

    DECISION

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

    Warren Stooke AM
    Member