1518127 (Migration)

[2016] AATA 3981

1518127 (Migration) [2016] AATA 3981 (1 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Luisa Totis

CASE NUMBER:  1518127

DIBP REFERENCE(S):  CLF2015/5434

MEMBER:Alan Duri

DATE:1 June 2016

PLACE OF DECISION:  Sydney

DECISION:The tribunal affirms the decision not to grant the applicant a Training and Research (Class GC) visa.

Statement made on 01 June 2016 at 9:48am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Miss Totis was born in Italy in 1979 and first arrived in Australia on 1 October 2012 on a Subclass 676 visitor visa. 

2. On 14 May 2014 Miss Totis applied for a Training and Research (Class GC) visa under s.65 of the Migration Act 1958 (the Act).

3. At the time of application, Class GC contained one subclass: Subclass 402 (Training and Research).

4. The criteria for a Subclass 402 visa are set out in Part 402 of Schedule 2 to the Migration Regulations 1994 (the Regulations). 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.

5. Miss Totis is seeking the visa in the Occupational Trainee stream.  This stream is for persons who want to improve their occupational skills through participation in workplace-based training in Australia.

6. On 21 January 2015 the delegate refused to grant the visa because Miss Totis did not meet cl.402.221 of Schedule 2 to the Regulations. The delegate noted the following:

• Miss Totis was identified in a nomination lodged by Global Food and Wine (Brisbane) Pty Ltd to undertake occupational training.

• On 20 November 2013 the department refused the nomination application.

• As at the time of decision, no further information has been received that identifies Miss Totis in an approved nomination by her intended sponsor or any other sponsor.  

1. On 10 July 2015 the tribunal (different constituted) decided that it did not have jurisdiction in this matter on the basis that at the time the review application was made (28 January 2015), there was no nomination of an occupation or activity relating to Miss Totis that was approved and in force.  There was also no review of the decision to not approve the sponsor pending before the tribunal.

2. In the meantime, on 9 December 2014 Global Food and Wine (Brisbane) Pty Ltd lodged an application for review with the tribunal concerning the 20 November 2014 nomination refusal. 

3. On 6 August 2015 Global Food and Wine (Brisbane) withdrew the application.  On the same day the tribunal decided it had no jurisdiction in the nomination matter. 

4. On 22 December 2015 the Federal Circuit Court ordered, by consent, that the tribunal reconsider Miss Totis’ matter according to law, on the basis that the tribunal made an error in determining it did not have jurisdiction to review the decision to refuse to grant the Subclass 402 visa.   

5. Miss Totis appeared before the tribunal on 17 May 2016 to give evidence and present arguments.

6. Miss Totis was represented by Mr Ray Turner.

7. The tribunal noted that Miss Totis’ former employer withdrew its application to the AAT.  The tribunal noted that Miss Totis is unable to meet an essential criterion for the visa if the nomination is not approved and in force.

8. Mr Turner requested an adjournment to follow up whether he employer is still willing to nominate Miss Totis.  The tribunal adjourned the matter until 31 May 2016.

9. As at the close of business 31 May 2016 the tribunal has received no further correspondence from Ms Totis or Mr Turner.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The question before the tribunal is whether the nomination by Global Food and Wine (Brisbane) Pty Ltd has been approved and has not ceased.

2. As at the date of the tribunal’s decision, there is no claim or suggestion by Ms Totis that the nomination has been approved. There is no evidence before the tribunal that Global Food and Wine (Brisbane) Pty Ltd (or anyone else) is seeking to have a nomination 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. In this case there is no evidence or suggestion that training is to be provided by the Commonwealth

3. As the occupational training is not to be provided to the applicant by the Commonwealth, then Miss Totis 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.

4. There is no evidence before the tribunal that the nomination by Global Food and Wine (Brisbane) Pty Ltd has been approved.  At any rate there is no evidence before the tribunal that the nomination is current.

5. It follows that cl.402.221 is not satisfied. 

6. Ms Totis 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 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 decision not to grant the applicant a Training and Research (Class GC) visa.

Alan Duri
Member