Chan (Migration)

Chan (Migration) [2024] AATA 708 (19 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ho Ming Chan
CASE NUMBER:  2216353
HOME AFFAIRS REFERENCE(S):          BCC2020/1528555

MEMBER:Alison Mercer
DATE:19 February 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Class GF (Training) subclass 407 visa.

Statement made on 19 February 2024 at 12:10pm

CATCHWORDS
MIGRATION – Training (Class GF) visa – Subclass 407 (Training) – Motor Mechanic – subject of an approved nomination – Tribunal declined indefinite adjournment of decision – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 407.214
CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 November 2022 to refuse to grant the visa applicant a Training (Class GF) Subclass 407 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 11 May 2020. The delegate refused to grant the visas on the basis that the applicant did not meet cl.407.214, which required that he was the subject of an approved nomination by an approved training sponsor. The delegate noted that the Department had rejected the nomination of the applicant made by Turboysperformance Pty Ltd.
The Tribunal received a review application from the applicant on 8 November 2022. It was accompanied by a copy of the delegate’s decision.
On 21 August 2023, the Tribunal wrote to the applicant to invite him to attend a telephone hearing on 26 September 2023.
On 30 August 2023, the Tribunal wrote again to the applicant to invite him, pursuant to s.359A of the Act, to comment on or respond to information held by the Tribunal that was potentially adverse to his case. The Tribunal advised the applicant that the particulars of the information were:
·at the time the applicant made his subclass 407 visa application on 11 May 2020, he was nominated by his proposed employer, Turboysperformance Pty Ltd;
·he applied to the Tribunal on 8 November 2022 for review of the Department’s decision to reject his subclass 407 visa application;
·the Tribunal’s records indicated that Turboysperformance Pty Ltd also lodged an application for review of the decision to refuse its nomination of the applicant;
·the Tribunal made a decision on 26 June 2023 to that it had no jurisdiction to review the nomination refusal decision as the company had withdrawn its review application; and
·accordingly, there was currently no approved nomination of the applicant by Turboysperformance Pty Ltd, and the decision to refuse the nomination was not under review by the Tribunal.
The Tribunal advised the applicant that the information was relevant to the review because, subject to his comments or response, it indicated that:
·the applicant was not the subject of an approved nomination that had not ceased, as required by cl.407.214(b) and (c) and this would be the reason (or part of the reason) for the Tribunal to affirm the decision under review, as it was a requirement that the primary applicant met cl.407.214(b) and (c) the time of decision; and
·there was no evidence that he met the criteria in the other parts of the subclass 407 visa.
The applicant was requested to respond or provide comments by 13 September 2023, and advised that if he failed to do so (or failed to ask for an extension of time to do so) by that date, he would lose his entitlement to a hearing.
On 12 September 2023, the applicant provided an email response to the Tribunal’s s.359A letter as follows:
…
I were [sic] employed by Turboysperformance Pty Ltd from 11 May 2020, but I have change my workplace to Goodyear Autocare because from the first rejected reason is suggest my employer suit as turboyperformance should employ local people during Covid period. I have had working for Goodyear autocare from 02/2021.
…
The applicant attended a telephone hearing on 26 September 2023. The Tribunal was assisted by the services of an interpreter in the Cantonese and English languages.
The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant, who is based in South Australia, while the Presiding Member is based in the Tribunal’s Victorian registry. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
At the hearing, the applicant said that he understood that his visa was refused because his then employer/trainer, Turboysperformance Pty Ltd, was advised by the Department during the COVID19 pandemic that it should only continue to employ Australian employees. He sought migration advice at the time, and was advised to try to find a new, bigger employer that would be able to take him on to continue to train him as a Motor Mechanic. The applicant told the Tribunal that he secured a position with Goodyear Autocare in February 2021, and started there about a week after he finished at Turboysperformance Pty Ltd.
In response to the Tribunal’s query, the applicant said that he was still at Goodyear Autocare, doing a mixture of training and work as a Motor Mechanic. He told the Tribunal that Goodyear Autocare were willing to nominate him, and had prepared all of the paperwork to be approved as a training sponsor and nominate him for a subclass 407 visa, but were yet to lodge these applications with the Department. He said that the migration solicitor the company had engaged had told them to wait until the outcome of the hearing.
The Tribunal explained that, without an approved nomination by an approved training sponsor, it would have to affirm the Department’s decision to refuse to grant him a subclass 407 visa, and that it could not indefinitely defer its decision to enable him to try to satisfy the visa criteria. It agreed to defer its decision until 10 October 2023 to enable the applicant to provide proof that Goodyear Autocare had lodged a sponsorship and/or nomination application, noting that the applicant could seek an extension of time to do so if he had good reasons to do so.
The Tribunal did not receive any update from the applicant by 10 October 2023. It wrote to him on 19 October 2023 and 3 November 2023 seeking clarification of whether a new nomination had been lodged. On 6 November 2023, the applicant advised by email that his employer, Goodyear Autocare, was preparing a new training plan as the previous one was outdated, and would not be able to lodge a nomination until this was done.
On 29 November 2023, the Tribunal wrote again to the applicant to advise that it intended to make a decision on his case in the following week as it had not received any indication that Goodyear Autocare had in fact lodged a new nomination in respect of the applicant.
On 4 December 2023, the applicant advised by email that his employer needed to provide a new training plan and needed additional time to do so.
On 5 December 2023, the Tribunal responded to ask the applicant or his employer’s agent to provide the estimated time it would take to prepare the new training plan and the date on which they expected to lodge a new nomination on the Department.
On 7 December 2023, the applicant responded as follows by email:
…
We will lodged it as soon as possible because the training plan need to be customise so need to take more time to complete, but I will pushing hard to let them complete it as soon as possibly. Please give us more time. Thanks.
…
On 31 January 2024, the Tribunal wrote again to the applicant to advise that as it had received no response to indicate that a nomination had been lodged (or when it would be lodged), it proposed to make its decision in the following week.
The Tribunal did not receive any further response from the applicant, or any other person on his behalf.
The Tribunal notes that it is not obliged to wait indefinitely in order for an applicant to be able to satisfy the visa criteria, as per the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. In this case, the Tribunal does not consider it unreasonable to proceed to a decision where the applicant has been given over 4 months from the date of the Tribunal hearing to provide evidence that his new employer was willing to nominate him, and had nominated him, yet no evidence of this has been provided. There is no evidence before the Tribunal to indicate that the lodgement of a nomination has occurred, or that it is imminent (in contrast to the case considered in Minister for Immigration and Citizenship v Li [2013] HCA 18).
Under these circumstances, the Tribunal considers it reasonable to proceed to a decision.
For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets cl.407.214, which provides as follows:
…
407.214
If the approved sponsor is not a Commonwealth agency:
(a) the sponsor has nominated a program of occupational training in relation to the applicant under paragraph 140GB(1)(b) of the Act; and
(b) the nomination has been approved under section 140GB of the Act on the basis of the criteria in regulation 2.72A; and
(c) the approval of the nomination has not ceased under regulation 2.72A; and
(d) either:
(i) there is no adverse information known to Immigration about the sponsor or a person associated with the sponsor; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the sponsor or a person associated with the sponsor.
…
It is not disputed that the applicant’s original sponsor, Turboysperformance Pty Ltd, is not a Commonwealth agency, and thus the applicant must meet cl.407.214. It is also not disputed that at the time of the delegate’s decision, the applicant did not have an approved nomination of a program of occupational training by his sponsor, and thus did not meet cl.407.214(b). This was because the Department had refused to approve the nomination made by the sponsor. There is no evidence before the Tribunal of any other approved nomination of the application.
Accordingly, the Tribunal must find that he does not meet cl.407.214(b) and cannot meet cl.407.214 as a whole. As a result, it must affirm the decision not to grant him a subclass 407 visa as there is no evidence before the Tribunal that he can meet the requirements of any other part.
DECISION
The Tribunal affirms the decision not to grant the applicant a Class GF (Training) subclass 407 visa.
Alison Mercer
Member

[2024] AATA 708

19 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Procedural Fairness