Austin (Migration)

[2017] AATA 656

Austin (Migration) [2017] AATA 656 (1 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Roland Michael Austin

CASE NUMBER:  1502729

DIBP REFERENCE(S):  BCC2014/3360765 CLF2015/15089

MEMBER:Karen Synon

DATE:1 May 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 01 May 2017 at 3:56pm

CATCHWORDS
Migration – Training and Research (Class GC) visa – Subclass 402 – Occupational Trainee stream – Nomination not lodged before 402 visa class closed – Applicant not the subject of a current nomination

LEGISLATION
Migration Act 1958, ss 65, 140GB, 359(2)
Migration Regulations 1994, Schedule 2, r 2.72I, cl 402.211, cl 402.221, Schedule 3 criteria 3004

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 10 February 2015 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 5 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). 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 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 visa because the applicant did not meet cl.402.211(b)(ii) of Schedule 2 to the Regulations because the applicant did not satisfy the Schedule 3 criteria 3004.

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. On 24 February 2015 the applicant applied for review of the primary decision and provided a copy of the department’s decision to the Tribunal.

7. On 14 February 2017 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting him to provide information, in writing, that he is the subject of an approved nomination which has not ceased as required by cl.402.221 of the Regulations. A copy of the relevant Regulations was provided with this letter. This information was invited by 28 February 2017. On 27 February 2017 an extension of time in which to provide the information was requested and granted. Also provided was a copy of the department’s acknowledgement of a new nomination lodged in relation to a 407 nomination.

8. On 13 March 2017 a request for a second extension of time made on the basis that the new nomination was still pending with the department was requested. As a second extension of time in which to respond o the s.359(2) was not able to be granted, a hearing was scheduled for 24 April 2017. Prior to the hearing the applicant’s representative was advised in writing that the primary issue before the Tribunal is whether the applicant is the subject of an approved 402 nomination that has not ceased.

9. The applicant appeared before the Tribunal on 24 Aril 2017 to give evidence and present arguments.

10. The applicant was represented in relation to the review by his registered migration agent who was present throughout the hearing.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. While the issue in the department decision is cl.401.211, a preliminary issue that arises on review is whether the applicant is the subject of a current nomination.

2. In this case, based on information in the visa application, the applicant will not be undertaking the proposed occupational training provided by the Commonwealth, and so he 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.

3. Based on the various submissions provided the Tribunal notes;

• A 402 nomination was approved on 28 May 2015 (f26);

• The approved 402 nomination expired (f44)

• A nomination for a 407 visa was lodged with the department on 24 February 2017; and

• A further 402 nomination was lodged on 21 April 2017.

1. During the hearing the Tribunal explained that the 402 visa class closed on 19 November 2016 as documented on the department’s website.[1] Therefore the applicant is not able to satisfy an essential requirement of the visa, cl.402.221, which requires him to be identified in a nomination of an occupation or activity approved under s.140GB of the Act, and that the approval of the nomination has not ceased.

   [1] < accessed 24 April 2017 and I May 2017.

2. Despite this publicly available information the applicant’s representative asserted orally and in a submission that [the department] “has indicated that Immigration will be able to process the nomination if so directed by the AAT”.  In particular it was contended that a 402 nomination was lodged with the department on 21 April 2017 and is pending and thus sought the “AAT’s direction to Immigration to process the nomination accordingly”.  The Tribunal expressed the view that it had no such power to direct the department to approve a nomination in a visa class that was closed.  Nonetheless following the hearing the Tribunal confirmed with the department the publically available information explained at the hearing that the subclass 402 closed on 19 November 2017.  This was communicated to the applicant via his representative.

3. Based on the uncontested information before it that a 402 nomination ceased by operation of law on 28 May 2016 and that no new 402 nomination was lodged before the 402 visa class was closed on 19 November 2017, the Tribunal is not satisfied that the applicant is the subject of a nomination that meets the relevant criteria that has not ceased.

4. On this basis the Tribunal finds 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.

5. Therefore, cl.402.212 is not satisfied. As this is a mandatory requirement for the grant of the visa, which is not satisfied, it is not necessary for the Tribunal to make findings in respect of any criteria in dispute at the primary stage. The Tribunal notes in this regard that both submissions and oral evidence were received that addressed the substantive issue of whether the applicant meets the Schedule 3004 criteria for the purposes of cl.402.211(b)(ii) however given the preceding findings these matters are not relevant.

6. 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 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.

Karen Synon
Member