1601516 (Migration)

[2016] AATA 4797

1601516 (Migration) [2016] AATA 4797 (9 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ashish Contractor

CASE NUMBER:  1601516

DIBP REFERENCE(S):  ASB2014/1670, CLF2014/76729, CLF2014/98470

MEMBER:Katie Malyon

DATE:9 December 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Training and Research (Class GC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 402 (Training and Research) visa:

·cl.402.221 of Schedule 2 to the Regulations.

Statement made on 09 December 2016 at 9:38 am

CATCHWORDS

Migration – Training and Research (Class GC) visa – Subclass 402 – Occupational trainee sponsor – No jurisdiction decision by first tribunal – Federal Circuit Court remittal – Approved nomination

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, r 2.72I, r 2.57, cl 402.221

CASES

MIBP v Lee [2014] FCCA 2881

Ahmad v MIBP [2015] FCAFC 182

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 6 May 2014 to refuse to grant the visa applicant, Mr Ashish Contractor, a Training and Research (Class GC) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Contractor applied for the visa on 30 December 2013.  At the time of application, Class GC contained one subclass: Subclass 402 (Training and Research) (Subclass 402 visa).

3. 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.  In the present case, Mr Contractor 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.

4. The delegate refused to grant Mr Contractor the visa because he did not meet cl.402.221 of Schedule 2 to the Regulations because there was no approved nomination by an occupational trainee sponsor in respect of him.

5. On 1 July 2015, the Tribunal (differently constituted) decided that, based on the decision in MIBP v Lee [2014] FCCA 2881, it did not have jurisdiction to review the delegate’s decision. However, on 14 October 2015 the Federal Circuit Court by consent quashed the decision and remitted the matter to the Tribunal to be determined according to law following the decision of the Full Federal Court in Ahmad v MIBP [2015] FCAFC 182 on the basis that a review of the nomination was pending at the time of Mr Contractor’s application for review.

6. Mr Contractor appeared before the Tribunal on 22 July 2016 to give evidence and present arguments.  He was represented in relation to the review by his registered migration agent who also attended the hearing.  This matter was previously constituted to another Tribunal Member who heard Mr Contractor’s evidence.  This Tribunal Member has listened carefully to the recording of that hearing and is satisfied that all of the relevant issues were raised in relation to whether the ground for refusing Mr Contractor a Subclass 402 visa is made out.  This Tribunal Member has also considered all documentation in the Tribunal’s file including correspondence to and from Mr Contractor’s representative after the hearing regarding the previously constituted Member’s opinion that a nomination for the position of Cook in respect of Mr Contractor would be more appropriate in light of his skills assessment made by Victoria University dated 18 December 2015.     

7. For the following reasons, the Tribunal has concluded that the decision under review should be set aside.

CLAIMS AND EVIDENCE

1. The issue in this review is whether the visa applicant meets meet cl.402.221 of Schedule 2 to the Regulations.

2. In order to satisfy cl.402.221 of the Regulations, 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.

3. If, as in this case, 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 of the Regulations either by a training and research sponsor or an 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. On 8 December 2016, the Tribunal approved the nomination made by occupational trainee sponsor McKkr’s Pty Ltd (McKkr’s) that identified Mr Contractor as the nominee.  The Tribunal has established that there is no adverse information known to Immigration about McKkr’s or a person associated with McKkr’s.

5. Accordingly, the Tribunal finds that:

• Mr Contractor is identified in a nomination by an occupational trainee sponsor;

• the nomination meets the criteria in r.2.72I of the Regulations;

• the approval of the nomination has not ceased; and,

• there is no adverse information known to Immigration about the nominator or a person associated with the nominator.

1. Therefore, cl.402.221 of Schedule 2 of the Regulations is met.

2. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

DECISION

1. The Tribunal remits the application for a Training and Research (Class GC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 402 (Training and Research) visa:

   ·cl.402.221 of Schedule 2 to the Regulations.

Katie Malyon

Member