Choi (Migration)

[2023] AATA 898

Choi (Migration) [2023] AATA 898 (21 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Mei Yee Choi
Mr Siu Hang Lau

REPRESENTATIVE:  Mr Stanley Chan (MARN: 0430097)

CASE NUMBER:  1924013

HOME AFFAIRS REFERENCE(S):         BCC2019/3315517

MEMBER:C. Packer

DATE:21 February 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Training (class GF) Training (subclass 407) visas.

Statement made on 21 February 2023 at 1:34pm

CATCHWORDS
MIGRATION – Training (Class GF) visa – Subclass 407 (Training) – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB
Migration Regulations 1994 (Cth), r 2.72A; Schedule 2, cl 407.214

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 Home Affairs on 21 August 2019 to refuse to grant the visa applicants Training (Class GF) Subclass 407 visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 2 July 2019. The delegate refused to grant the visas on the basis that there was no approved nomination of a program of occupational training in relation to the first-named applicant under paragraph 140GB(1) (b) of the Act, and so cl.407.214 was not met.

3. On 21 December 2022 the Tribunal wrote to the review applicants pursuant to s.359 of the Act, inviting the review applicants to provide comments or response on information. The letter also invited the applicants to provide information. An extension of time was granted to 18 January 2023.

4. The Tribunal received a response and information on 18 January 2023.

5. The applicants appeared before the Tribunal by phone on 21 February 2023 to give evidence and present arguments. Ms Choi gave evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. On 2 July 2019 the applicants applied for the Subclass 407 visas, on the basis of a nomination for the position of Fruit or Nut grower by Berry Sweet Strawberry Farm Pty Ltd ATF The Yewers Family Trust. However, the delegate refused the nomination application on 17 July 2019. Accordingly, on 21 August 2019 the delegate refused to grant the visas on the basis that there was no approved nomination of a program of occupational training in relation to the first-named applicant under paragraph 140GB(1) (b) of the Act, and so cl.407.214 was not met.

8. On 20 December 2022 in Tribunal case 1921291 the Tribunal found the nominator, Berry Sweet Strawberry Farm Pty Ltd ATF The Yewers Family Trust, did not meet the requirements for approval of the nomination of the program of occupational training.

9. On 21 December 2022 the Tribunal wrote to the applicants inviting the applicants to provide comments or response on information that addressed the requirements for the Training (class GF) Training (subclass 407) visa. The letter stated in part:

   On 20 December 2022 in Tribunal case 1921291 the Tribunal found the nominator, Berry Sweet Strawberry Farm Pty Ltd ATF The Yewers Family Trust, did not meet the requirements for approval of the nomination of the program of occupational training. The Tribunal was not satisfied that:

   ·the training program first proposed in mid-2019 is specifically tailored to the training needs of the nominee; and of a duration that meets the specific training needs of the nominee (reg 2.72B(3)(a))

   ·the nominated program is offered as a genuine training opportunity for the purpose of enhancing the nominee’s skills (reg 2.72A(16))

   ·the sponsor does not engage in, or intend to engage in, activities that will have adverse consequences for employment or training opportunities, or conditions of employment, for Australian citizens or Australian permanent residents (reg 2.72A(13)).

   This information is relevant to the review because clause 407.214(b) requires:

   (b) the nomination has been approved under section 140GB of the Act on the basis of the criteria in regulation 2.72A;

   As the nomination of the program of occupational training has not been approved, you would not satisfy clause 407.214(b).

10. On 18 January 2023 a submission stated in part:

    Thank you for your extension to respond, and as the training plan provided by the sponsor, the training session was completed as a fruit grower, the employer has confirmed to provided all the sessions in the plan and also the employer has paid the trainee as agreed contract. we have provided the trainee's NOA, payslips in the last email.

    However, the refusal decision may affect the trainee to apply another visa and in the Department's decision letter  
    “As such, I have concluded that the training provided suggests a long-term employment opportunity with an incidental training component. Occupational Training to Enhance Skills is not designed to fill labour shortages or circumvent proper migration channels by utilising the program as an alternative pathway to fill labour shortages, which may disadvantage an Australian citizen or permanent resident. Consequently, I am not satisfied this is a genuine training opportunity to enhance the occupational skills."

    Since mid 2019 - mid 2021 upon the training plan completed, the above statement was not true.
    The applicant has been with the employer for over 6 years including the casual employment and full time employment. she is also a citizen from Hong Kong which the Department should give more concession on the visa pathway.
    I have attached her working documents to support her skill, knowledge and experience, her employer has just finished the labour marketing test to approve the shortage of such grower in WA.

    We would like the member to consider all these facts and would refer her to the Minister intervention unit for further consideration.

11. At the hearing the Tribunal explained the requirement that there be an approved nomination. Ms Choi responded and stated in part that the farmer had not been taking advantage of her. She completed the training plan, and she was paid a salary. Their application for 407 visas had been genuine. If refused they would be unable to apply for another visa on-shore. Mr Lau had no comments. Mr Chan made no further submissions.

12. The Tribunal also advised the applicants that it had not assessed whether Ms Choi had been a genuine applicant for a 407 visa and did not propose to refer the matter to the Minister. The Tribunal indicated that it was open for them to seek Ministerial intervention if they wished.

13. In sum, the Tribunal finds there is no nomination approved under section 140GB of the Act on the basis of the criteria in regulation 2.72A.

14. For these reasons, cl.407.214(b) is not met. As one of the essential requirements for the visa is not met, the decision under review concerning both applicants must be affirmed.

    DECISION

15. The Tribunal affirms the decision not to grant the applicants Training (class GF) Training (subclass 407) visas.

    C. Packer
    Member