Choi (Migration)

[2023] AATA 255

Choi (Migration) [2023] AATA 255 (12 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Inho Choi

REPRESENTATIVE:  Ms Natalia Arens (MARN: 0534230)

CASE NUMBER:  1922731

HOME AFFAIRS REFERENCE(S):          BCC2019/2991303

MEMBER:K. Chapman

DATE:12 January 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Training (Class GF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 407 visa:

·cl 407.214 of Schedule 2 to the Regulations.

Statement made on 12 January 2023 at 1:54pm  

CATCHWORDS

MIGRATION – Training (Class GF) visa – Subclass 407 (Training) – supply and distribution manager – subject of approved training program nomination – refusal of related nomination application set aside on review – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 140GB(1)(b)

Migration Regulations 1994 (Cth), rr 2.72A, 2.72B, 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 25 July 2019, to refuse to grant the applicant a Training (Class GF) Subclass 407 visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’). The applicant, Mr Inho Choi, applied for the visa on 12 June 2019.

2. The criteria for a Subclass 407 visa are set out in Part 407 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘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.

3. The applicant is seeking the visa in the ‘occupational training to enhance skills’ component, to undertake training in the nominated occupation of Supply and Distribution Manager (ANZSCO 133611). The applicant has been nominated for a program of occupational training by Howe Farming Enterprises Pty Ltd (‘the nominator’) in relation to the visa application.

4. The delegate refused to grant the visa on the basis that cl 407.214(b) was not satisfied, because the applicant was not the subject of an approved nomination of a program of occupational training as required. On 15 August 2019, the applicant applied to the Tribunal for review of the visa refusal decision. A copy of the delegate’s visa refusal decision was provided with the application for review.

5. The applicant appeared by telephone before the Tribunal on 20 December 2022 to give evidence and present arguments. He confirmed he was comfortable participating in the hearing by telephone. The Tribunal also took evidence by telephone from the applicant’s supervisor, Ms Kim Mastin. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant satisfies cl 407.214.

   Nomination of a program of occupational training

8. Clause 407.214, as applicable in this case, requires that the applicant be the subject of an application for approval of a nominated program of occupational training, pursuant to s 140GB(1)(b) of the Act. In addition, this criterion also requires that:

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

   ·the approval of the nomination has not ceased under regulation 2.75A; and

   ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of regulations 1.13A and 1.13B); or it is reasonable to disregard any such information.

9. The applicant gave evidence to the Tribunal at hearing indicating that he is genuinely ready to undertake a program of occupational training with the nominator, in the occupation of Supply and Distribution Manager (ANZSCO 133611). This program is to focus on the application of the occupation to an agricultural setting. The Tribunal notes that the application for approval of the nominated program of occupational training, by Howe Farming Enterprises Pty Ltd (‘the nominator’), was refused by the Department on 25 July 2019. However, on 12 January 2023, the Tribunal set aside the decision not to approve the nomination of the program of occupational training and substituted a decision that the nomination is approved (see AAT matter 1922727).

10. Following careful consideration of the evidence, the Tribunal is satisfied that the nomination of the program of occupational training, in the occupation of Supply and Distribution Manager (ANZSCO 133611), has been approved pursuant to section 140GB of the Act and regulations 2.72A and 2.72B.

11. Additionally, the Tribunal is satisfied that the approval of the nomination has not ceased under regulation 2.75A, and that there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of regulations 1.13A and 1.13B).

    CONCLUSION

12. Given the above matters, the Tribunal finds that cl 407.214 is satisfied by the applicant. Therefore, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

13. Further, the Tribunal notes that it considers the applicant to require a further two years to complete his program of occupational training. The Tribunal recommends the Subclass 407 visa be granted with validity until January 2025.

    decision

14. The Tribunal remits the application for a Training (Class GF) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 407 visa:

    ·cl 407.214 of Schedule 2 to the Regulations.

    K. Chapman
    Member