DE BUCK (Migration)

[2020] AATA 635

DE BUCK (Migration) [2020] AATA 635 (5 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Julien Ghislain DE BUCK

CASE NUMBER:  1802088

DIBP REFERENCE(S):  BCC2017/4372956 CLF2018/13732

MEMBER:Karen Synon

DATE:5 March 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Training (Class GF) Subclass 407 visa.

Statement made on 05 March 2020 at 10:40am

CATCHWORDS
MIGRATION – Training (Class GF) – Subclass 407 (Training) – employer’s training nomination refused – application for review of refusal withdrawn – written response to tribunal’s s 359A letter but no appearance by applicant at hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65, 359A, 362B(2)

Migration Regulations 1994 (Cth), cl 407.214(b)

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 Border Protection v Singh [2014] FCAFC 1

Minister for Immigration and Citizenship v Li [2013] HCA 18

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 15 January 2018 to refuse to grant the visa applicant a Training (Class GF) Subclass 407 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 20 November 2017.

3. On 15 January 2018 the delegate refused to grant the visa on the basis that cl.407.214 was not satisfied because the applicant was not identified in an approved Training (subclass 407) nomination.

4. The applicant applied for review of the primary decision on 27 January 2018 and provided a copy of the department’s decision.

5. The applicant was represented in relation to the review by his registered migration agent until 31 January 2020 when a ‘Change of Contact Details’ form was received.

6. On 30 January 2020 the Tribunal wrote to the applicant, via his (then) authorised recipient and registered migration agent, inviting him to a hearing to present evidence and arguments in relation to his case at 9am on 3 March 2020.  The hearing was scheduled to be conducted via video with the applicant attending at the Wagga Wagga Local Court in accordance with his residential location.  The invitation relevantly stated:

   If you do not attend the scheduled hearing, we may make a decision without taking any further action to allow or enable you to attend before us or may dismiss your application for review without any further consideration of the application or information before us.

7. On 31 January 2020 the applicant advised the Tribunal via email that he would like to participate in the hearing in person in Melbourne and that he wanted to cancel his authorised recipient.  On 3 February 2020 the Tribunal emailed the applicant at the email address he had used to correspond with it to advise him that the hearing location had been changed to Melbourne, Level 4 15 William Street, and that all other hearing details remained the same.

8. The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear.

9. Section 362B(2) provides the Tribunal with a discretion to reschedule the applicant’s appearance before it or to delay its decision on the review in order to enable his appearance to be rescheduled.  The Tribunal has therefore considered whether it would be appropriate in the circumstances of this case to exercise this discretion in the applicant’s favour.

10. The Tribunal’s records confirm that text messages reminding the applicant of the hearing were sent to his advised mobile telephone number at 11am on 25 February 2020 and again at 11am on 3 March 2020.

11. Further, the Tribunal is satisfied that it correctly communicated with the applicant directly on 3 March 2020 confirming the location of the hearing had been changed to Level 4, 15 William Street, Melbourne, and that all other hearing details remained the same.

12. Finally, the Tribunal has waited 48 hours after the scheduled hearing to see if any explanation or medical evidence was provided for why the applicant did not appear before the Tribunal as scheduled.  None has been provided.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant meets the requirements of cl.407.214(b) which requires him to be the subject of an approved nomination of occupational training by an approved work sponsor.

15. On 9 January 2020 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting him to provide comments or respond, in writing, to information it considered would the reason or part of the reason for affirming the decision under review.  In particular, the Tribunal raised information indicating that the review of a decision of the department not to approve a nomination in respect of him made by Everlasting Agriculture Management Pty Ltd, his proposed nominator, was withdrawn and further, there was no information contained on the Department’s files recording that he is the subject of an approved or pending nomination by an approved work sponsor.  The applicant was advised that this information is relevant to the review because cl.407.214 requires that, at the time of decision, he must be the subject of an approved or pending nomination by a work sponsor.  Comments or a response in writing were invited by 23 January 2020.

16. In response on 22 January 2020 the applicant provided the following relevant submission:

    …I would like to state that I am redacting my defense by my own as the authorised recipient of my visa suggested me to withdraw my appeal to seek my own independent advice…
    The reasons why I am willin here are : the working experience in the horticulture that I have built for the past 3 years, my ambition of gaining knowledge and giving back to the community who allowed me to obtain this marvellous opportunity.  I have discovered this industry while arriving in Australia as coming from Brussels, Belgium it is impossible to find any career in that field.

    To set a little bit of context on how did my Training visa 407 (Class GF) end up at the Administrative Appeal Tribunal, which I think is crucial : on the 11th of December 2017 I have received a Notification of refusal of a nomination application…as the officer in charge found in my resume that I have not engaged in work related to Human Resource Management for at least 12 months in the 24 months immediately preceding the time of nomination, which is true mentioned above : I have only been working in Australia in the horticulture industry.

    Later, another nomination has been sent and on the 15th of January 2018, I have received another Notification of refusal of a nomination…stating that I have not enough experience in work related to Arborist, which was debatable and that is why I have decided to apply for a review on the 21/01/2018 to The Administrative Appeals Tribunal.

    Due to the negligence of the person in charge of my application, my nominations have been wrongly submitted twice and resulted in constraining bridging visa conditions (8101 and « no travel ») which put me in financial difficulties and extremely stressful time.  I do not want to shift the blame on anyone else than me as I should have been more involved in the process and should have done my own independent research to find a better nomination fitting my working experiences but at that moment I did not have the faintest idea how that mistake was the turning point regarding my application and is, to this day, my biggest regret as I should not have trusted anyone who is not qualify to take such important decision concerning my future.

    During that period, I was granted a Bridging Visa class C without any right to work which put me in difficult situation and after few months I was able to apply through the form 1005 to waiver of condition 8101 on the basis of financial hardship…and to this day, unauthorized to travel, tough condition, as I have not been able to see my family overseas for over 2 years now.  At that point, I lost a good part of my savings, if not everything, but still determined to pursue my application.

    Early in July 2019, I have received a notification from the manager of the company who invited me to apply for this visa stating that due to sudden resignation of the general manager of the orchard we were operating in, the replacing manager might not use our services anymore…Living in Batlow, NSW, I have found another employer who is operating a nursery growing rhododendrons and who was looking for someone to be in charge of the production, which was a great opportunity to develop my knowledge, my working experience and of course, replacing my missing sponsor.

    Sadly, as I believe you are aware of, the Dunns Road bushfire has burnt, according to the Snowy Valleys Bushfire Recovery Bulletin #1 of the 17th of January, approximately 331981 hectares incorporating National Park, pine plantation, and other – (including hardwood forest, crown land and agriculture land).  The perimeter of the fire is 911km, which included Batlow and the Batlow Rhododendron Nursery and a part of my residence…from that incident we had to evacuate (around the 2nd of January) from the fire and toxic smokes for over a week, that was the most heartbreaking and stressful experience I have been through and yet, I am standing strong and more determined than ever to fight for my visa.

    Conscient (sic) of my situation, my current employer is willing to go through the process of sponsoring my visa and, from what we last discussed, will try to get help from the local MP and Deputy Prime Minister with hope to spread awareness about the emergency on both my immigration status, the need of worker to rebuild the local businesses and hopefully find a solution together.

    My wish here would be to obtain an extension of my bridging visa in order to find sponsors to replace the one missing.  I deeply wish I could rely on the Batlow Rhododendron Nursery only, but I do not know if the current situation of the business will be allowed to gain the status of sponsor and, from what I learned during this whole journey, I must have other options to maximize my chances and insure a smooth visa procedure.

    If I were lucky enough to be granted some extra time in order to apply and seek for other options, it would allow me to fully go for what I fought for so far.  Regarding the extension period, I do not have any idea about how long it would take as it depends on many factors.  1 month, 3 months, 6 months or 12 months whatever the period I would be granted or none, I will, in any case, forever be thankful of what Australia and its community has offered to me and will not regret at all the outcome of what will happen about my journey.

17. The applicant also provided the following supporting documents:

    ·     An email from the agent’s former representative who advised “unless you have been approved for another 407 nomination you will have limited options to progress your visa refusal appeal.  My advice is to withdraw the appeal.  You are welcome to obtain your own independent advice as well just be mindful of the last date to respond to the tribunal.

    ·     An email from ‘Raymond’ dated 15 July 2019 which relevantly states “due to the sudden resignation of Montage Orchard Manager Mr Barry, we might not be able to sponsor you on the 407 training visa as we are not sure the new replacement manager will continue to use our service.  My advice is for you to seek another sponsor, your current employer, to sponsor on the training visa if you wish to remain in Australia to learn the skill.

    ·     Five copies of photographs labeled as a damaged residence and nursery.

    ·     Correspondence to the applicant from the Department regarding his bridging visa conditions, the primary decision refusing this visa, the refusal of the related nomination application in relation to an arborist and another refusal of a related nomination application in relation to a human resource manager.

18. The primary decision records that on 11 December 2017 a decision was taken by the Department to refuse the nomination lodged in respect of the applicant by Everlasting Agriculture Management Pty Ltd.  His visa was subsequently refused on 15 January 2018.  As detailed above, on 9 January 2020, the Tribunal advised the applicant in writing that Everlasting Agriculture Management Pty Ltd, his proposed nominator, withdrew its application for review of the primary decision on 22 November 2019 and that there was no evidence before the Tribunal that he was the subject of an approved or pending 407 nomination by an approved work sponsor.

19. In his response the applicant did not dispute that he is not the subject of a pending or approved 407 nomination and provided information that he was advised in July 2019 that Everlasting Agriculture Management Pty Ltd might not be able to sponsor him on the 407 training visa and that he should seek another sponsor if he wished to remain in Australia to learn the skill.

20. Therefore, as there is no approved nomination of a program of occupation training in relation to the applicant which could satisfy the requisite elements of cl.407.214, the Tribunal finds that the applicant is not presently the subject of an approved nomination by a standard work sponsor.

21. The Tribunal records that the applicant asked for extra time of “1 month, 3 months, 6 months or 12 months” to allow him time to “apply and seek for other options”.  Because he did not attend the hearing the Tribunal could not ask the applicant to explain what steps he had undertaken since being advised in July 2019, over 7 months ago, to secure another nomination or lodge another visa application but it appears from his correspondence that he has taken no such steps.  While the Tribunal acknowledges and accepts that the facility in which he was working was heavily impacted by bush fires in January 2020, there is no evidence that in the 6 month period before this, and after he was advised that Everlasting Agriculture Management Pty Ltd would likely not be able to sponsor him on the 407 training visa and that he should look for other sponsorship options, that he had secured any other nomination.

22. In considering the circumstances of this case and particularly because the applicant was on notice from at least July 2019 that his sponsor was not likely able to sponsor him and that he should seek another sponsor if he wished to remain in Australia, the Tribunal has decided not to grant this additional time of “1 month, 3 months, 6 months or 12 months”.  In making the decision to refuse the additional time requested the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna vMinister 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. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue.

23. Finally, the Tribunal notes that it may be open to the applicant, if he is successful in securing a new sponsor, to apply for another Training (class GF) Training Subclass 407 visa offshore.

24. As there is no approved nomination of a program of occupation training in relation to the applicant which could satisfy cl.407.214(b), the Tribunal finds that the applicant is not presently the subject of an approved nomination by a standard work sponsor.

25. For these reasons the requirements of cl.407.214 are not met.

26. It follows that the decision under review to refuse the applicant the visa must be affirmed.

    DECISION

27. The Tribunal affirms the decision not to grant the applicant a Training (Class GF) Subclass 407 visa.

    Karen Synon
    Member