Chitsunge (Migration)

[2019] AATA 3787

Chitsunge (Migration) [2019] AATA 3787 (13 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Nyasha Chitsunge

CASE NUMBER:  1702599

DIBP REFERENCE(S):  BCC2016/1957322

MEMBER:Mr S Norman

DATE:13 August 2019

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(1)(a) of Schedule 2 to the Regulations

Statement made on 13 August 2019 at 1:05pm

CATCHWORDS
MIGRATION – Training and Research (Class GC) visa – Subclass 402 – Occupational Trainee stream – nomination application approved– applicant is identified in a r.2.72I approved nomination by a training and research sponsor – nomination is current –decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 2.57, 2.72, Schedule 2, cl 402.221

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 30 January 2017 to refuse to grant the visa applicant a Training and Research (Class GC) visa under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The applicant applied for the visa on 6 June 2016. 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.402.221(1)(a) of Schedule 2 to the Regulations.

5. The applicant was represented in relation to the review by her registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Sponsorship and nomination requirements

7. 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.

8. If the occupational training is to be provided to the applicant by the Commonwealth, the requirements are: that a training and research sponsor or an occupational trainee sponsor has agreed, in writing, to be the approved sponsor in relation to the applicant, that the sponsor has not withdrawn its agreement and that the sponsor has not ceased to be an approved sponsor.

9. If 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 by a training and research sponsor or 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.

10. In their decision, the delegate noted that the nomination application identifying the applicant was refused on 22 December 2016. On 22 December 2016, an invitation was sent to the applicant in regards to them not being identified in an approved nomination by a Training and Research Sponsor. On 27 January 2017, the applicant advised the Department she did not wish to withdraw the application.

11. After then considering the evidence, the delegate was not satisfied the applicant met cl.402.221(1)(a). That stated:

    402.221

    (1) Either:

    (a)      if the occupational training is not to be provided to the applicant by the Commonwealth:

    (i)      the applicant is identified in a nomination by a training and research sponsor or an occupational trainee sponsor; and
    (ii)      the nomination meets the criteria in regulation 2.72I; and
    (iii)      the approval of the nomination has not ceased under regulation 2.75A; and
    (iv)      either:

    (A)      there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
    (B)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; …

12. By migration agent submissions lodged with the Tribunal on 1 August 2019, it was claimed the Zimbabwe citizen applicant had resided in Australia since October 2009; that she has an 18 year old daughter (currently enrolled at university) and a 14 year old son (who attends school in Dubbo). It was also advised the applicant pays for her daughter’s university accommodation and that her son resides with her. However, the children’s father (the applicant’s former partner) had applied for permanent residency in Australia and had included both children on his visa application.

13. The agent advised the Tribunal that the applicant travelled to Australia on a Subclass 457 visa (as a secondary applicant) but her relationship with the primary applicant had failed and she was no longer a member of his family unit. Her Subclass 457 visa was then cancelled on 22 March 2016; but on review it was reinstated. However her Subclass 457 visa was due to expire on 8 June 2016.

14. The applicant had been working for Dubbo RSL Aged Care from February 2010. It was then said that recruiting and retaining staff trained in aged care in regional areas was difficult; the applicant was the “ideal candidate due to her dedication and commitment”; that she had a high standard of English language competency and was an effective communicator.

15. The agent said the Subclass 402 nomination and visa application was submitted on 6 June 2016; and the applicant’s visa application was subsequently refused on 30 January 2017. However, the applicant had continued to be engaged in the care of elderly residents at Dubbo RSL Aged Care (now known as Orana Gardens Ltd). It was claimed the applicant wished to continue her training and remain in Australia with her two children.

16. The agent then said “the rights of the children to have access to both parents is very important to them as the children grow into responsible Australian adults”. It was further claimed the applicant had come from a culture where men had more than one wife; that she had been traumatised when her visa had been cancelled; up until that point her then husband had taken care of the family’s visa issues; but since then the applicant had become “resilient and is highly capable”.

17. That being said, by Tribunal decision dated 13 August 2019, the Tribunal approved the nomination application by Dubbo RSL Aged Care Association Pty Ltd (ORANA GARDENS LTD).

18. Further, the Tribunal accepts that the applicant is identified in a r.2.72I approved nomination by a training and research sponsor or an occupational trainee sponsor, and that the nomination is current. Further, the Tribunal has no evidence of any ‘adverse information’ known to Immigration about the nominator or an associated person.

19. Accordingly, the Tribunal is satisfied the applicant meets cl.402.221(1)(a).

20. Given this finding, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

21. 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(1)(a) of Schedule 2 to the Regulations

    Mr S Norman
    Member