1605266 (Migration)

[2016] AATA 4577

1605266 (Migration) [2016] AATA 4577 (24 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Yung-han Huang

CASE NUMBER:  1605266

DIBP REFERENCE(S):  BCC2014/3547707 clf2016/30808

MEMBER:Marten Kennedy

DATE:24 October 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 24 October 2016 at 2:44pm

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 March 2016 to refuse to grant the visa applicant a Training and Research (Class GC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 23 December 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). 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 applicant is seeking the visa in the Occupational Trainee stream. The delegate refused to grant the visa because the applicant did not meet cl.402.221 of Schedule 2 to the Regulations.

5. 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.

6. In this case, there is nothing to suggest that the applicant was to undertake occupational training provided by the Commonwealth, and so 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.

7. On 21 September 2016 I wrote to the applicant’s registered migration agent using the procedure provided for in section 359A of the Migration Act. It is convenient to reproduce the substantive text of that letter to demonstrate the situation that confronts me in undertaking this review:

   Context

   You have applied for a Temporary Work (class GC) Training and Research (subclass 402) visa.  In order for this visa to be granted, you must (relevantly) be the subject of an approved nomination by a training and research or occupational trainee sponsor.

   At the time of the delegate’s decision, two applications for nomination approval in respect of you had been refused by the Department.  The Department refused to grant the visa because you were not sponsored.

   Clear particulars of information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review.

   It has come to the Tribunal’s attention that a further application for approval of a nomination by an occupational trainee sponsor in respect of you was refused on 1 August 2016.

   The Department’s records indicate no further application for approval of a nomination in respect of you has been made.

   Why the information is relevant to the review.

   In order to meet an essential criterion for the grant of the visa (cl.402.221(1))), if the occupational training is not to be provided to you by the Commonwealth, then you must be identified in a nomination by a training and research sponsor or an occupational trainee sponsor and that nomination must have met applicable criteria and not have ceased.

   The information outlined above would lead the Tribunal to conclude that you are not identified in a nomination by a training and research sponsor or an occupational trainee sponsor that has met applicable criteria and has not ceased.

   The consequences of the information being relied upon in affirming the decision under review.

   If you do not meet this essential criterion for the grant of the visa, the visa must be refused, and the Tribunal will affirm the decision under review.

8. I also invited the provision of information to demonstrate that the applicant was the subject of a complying nomination.

9. No response has been received to my correspondence.  It follows that I may proceed to complete the review without taking any further action to obtain a comment or response to this information, or the information I invited to be provided.  Although I have discretion in this regard, I will exercise that discretion to proceed to complete the review in the circumstances of this case.  My reasons for doing so are that there have been three unsuccessful attempts for the applicant to obtain a nomination, the issue in the review is clear and indeed has not changed from the issue that led the delegate to refuse the visa in March, and the applicant has now had an opportunity to put forward any reasons as to why I should defer the inevitably adverse outcome of the review in these circumstances, with no further contact being made.

   CONSIDERATION

10. As mentioned above, as the occupational training is not to be provided to the applicant by the Commonwealth, 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.

11. I am not satisfied that the applicant is the subject of a nomination that meets the relevant criteria that has not ceased in circumstances where I have evidence that an associated nomination application has been refused three times.  Furthermore, I am not satisfied that the applicant is the subject of a nomination that meets the relevant criteria where I have specifically invited the provision of information to demonstrate that, and the applicant has not provided information to that effect.

12. I conclude therefore that the applicant is not identified in a r.2.72I-approved nomination by a training and research sponsor or an occupational trainee sponsor that has not ceased. It follows that he applicant cannot satisfy the requirements of cl.402.221 of Schedule 2 to the Regulations. As this is essential in the applicant’s circumstances, the visa must as a consequence be refused.

    DECISION

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

    Marten Kennedy
    Member