1504921 (Migration)

[2016] AATA 3095

1504921 (Migration) [2016] AATA 3095 (22 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Tat Yin Wong
Mrs Suet Kwan LI

CASE NUMBER:  1504921

DIBP REFERENCE(S):  BCC2014/1798415

MEMBER:Carolyn Wilson

DATE:22 January 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decisions not to grant the applicants Training and Research (Class GC) visas.

Statement made on 22 January 2016 at 12:01pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 31 March 2015 to refuse to grant the visa applicants Training and Research (Class GC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 23 July 2014. At the time of application, Class GC contained one subclass: Subclass 402 (Training and Research).

3. The criteria for a Subclass 402 visa are set out in Part 402 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Occupational Trainee stream, the Research stream, or the Professional Development stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Occupational Trainee stream. This stream is for persons who want to improve their occupational skills (including in the field of sport) through participation in workplace-based training in Australia. The delegate refused to grant the visas because the applicant did not meet cl.402.221 of Schedule 2 to the Regulations because the nominated position was not approved.

5. The applicants were represented in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the nomination for the occupational trainee position has been approved.

Sponsorship and nomination requirements

1. In order to satisfy cl.402.221, applicants in the Occupational Trainee stream must meet certain requirements relating to sponsorship and, in some cases, nomination, depending on whether or not the occupational training is to be provided by the Commonwealth.

2. If the occupational training is to be provided to the applicant by the Commonwealth, the requirements are: that a training and research sponsor or an occupational trainee sponsor has agreed, in writing, to be the approved sponsor in relation to the applicant, that the sponsor has not withdrawn its agreement and that the sponsor has not ceased to be an approved sponsor.

3. If the occupational training is not to be provided to the applicant by the Commonwealth, then the applicant must be identified in a nomination which meets the criteria in r.2.72I by a training and research sponsor or occupational trainee sponsor, and that nomination must not have ceased. Additionally, there must be no adverse information known to Immigration about the nominator or a person associated with the nominator, or it must be reasonable to disregard any such information. ‘Adverse information’ and ‘associated with’ are defined in r.2.57 of the Regulations.

4. In this case the occupational training is not being provided by the Commonwealth, but is to be provided by the College of Innovations and Industry Skill Pty Ltd.  There must therefore be a nomination which meets the criteria in r.2.72I.

5. The Department refused the nomination for the occupational training, and the Tribunal affirmed the decision on 4 January 2016.  The nomination does not meet the criteria in r.2.27I.

6. The Tribunal wrote to the applicant on 7 January 2016 pursuant to s.359A, putting to the applicants the adverse information that the Tribunal had affirmed the decision to refuse the nomination.  The applicants were asked to respond by 21 January 2016 however no response has been received.  Accordingly s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal.  The Tribunal has proceeded to decision, as it is evident the applicants cannot meet cl.402.221.

7. The applicant cannot satisfy an essential criterion because the nomination for this position has not been approved.  Therefore, cl.402.221 is not satisfied. 

8. The applicant has only sought to satisfy the criteria for a Subclass 402 visa in the Occupational Trainee stream. No claims have been made in respect of the other visa streams.  As the applicant cannot meet an essential criterion, it follows the secondary applicant cannot meet cl.402.311.

9. As requirements that must be met by a person seeking the visa in the Occupational Trainee stream have not been met, the decision under review must be affirmed.

DECISION

1. The Tribunal affirms the decisions not to grant the applicants Training and Research (Class GC) visas.

Carolyn Wilson
Member