Ellis (Migration)

[2023] AATA 782

Ellis (Migration) [2023] AATA 782 (31 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mitchel Ellis

CASE NUMBER:  1904799

HOME AFFAIRS REFERENCE(S):          BCC2018/4950905

MEMBER:Katie Malyon

DATE:31 March 2023

PLACE OF DECISION:  Sydney

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

Statement made on 31 March 2023 at 1:47 pm

CATCHWORDS
MIGRATION – Training (Class GF) visa – Subclass 407 (Training) – animal attendant and trainer – related nomination of training program refused and refusal affirmed on review – no substantive response to tribunal’s invitation to comment – no entitlement to hearing and not appropriate to adjourn – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363(1)(b), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 407.214(b)

CASE
Hasran v MIAC [2010] FCAFC 40
Huo v MIMA [2002] FCA 617
Manna v MIAC [2012] FMCA 28

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 14 February 2019 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).

2. The visa applicant, British national Mitchel Ellis, applied for the visa on 8 November 2018.  It was proposed that the visa would to enable Mr Ellis to undertake training in the occupation of Animal Attendants and Trainers nec ANZSCO 361199 with his training activities sponsor, R F Sommerville & Z.E Sommerville T/A Dromedary Dreams Camel Company ABN 75 391 488 055.

3. The delegate refused to grant the visa on the basis that the Partnership’s nomination application in relation to Mr Ellis was refused by the Department on 15 January 2019. As a result, Mr Ellis did not satisfy cl 407.214 of Schedule 2 of the Migration Regulations 1994 (the Regulations).  Mr Ellis applied to the Tribunal for review of the delegate’s decision to refuse his Subclass 407 visa.   

   Tribunal’s 359A Letter

4. The Tribunal wrote to Mr Ellis on 16 March 2023 pursuant to s 359A of the Act inviting him to comment on or respond to information which the Tribunal considers would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review.

5. In its 359A letter, the Tribunal stated that:

   ·at the time you made your Subclass 407 Training visa application on 9 November 2018, you declared in your visa application that you were nominated by your sponsor R F Sommerville & Z R Sommerville;

   ·R F Sommerville & Z R Sommerville had nominated a program for occupational training for you in respect of the occupation of Animal Attendants and Trainers nec.  However, R F Sommerville & Z R Sommerville’s nomination was refused by the Department of Home Affairs on 15 January 2019;

   ·As a consequence, the delegate refused your Subclass 407 visa application on 14 February 2019 on the basis that R F Sommerville & Z R Sommerville’s nomination was not approved. This was because you did not meet the criteria in cl 407.214(b) of Schedule 2 to Regulations;

   ·on 1 January 2019, R F Sommerville & Z R Sommerville sought review of the delegate’s refusal of their nomination in the Tribunal.  You also sought review of the delegate’s refusal of your Subclass 407 visa application;

   ·on 16 November 2022, the Tribunal affirmed the decision not to approve R F Sommerville & Z R Sommerville’s nomination; and,

   ·accordingly, there is currently no approved nomination by R F Sommerville & Z R Sommerville in relation to you.

6. The Tribunal noted that the information set out in its s 359A letter is relevant to the review because it appears that there is currently no approved nomination and, as such, cl 407.214 has not been met. Additionally, the Tribunal stated that, if it relies on this information in making its decision, it may find that Mr Ellis does not satisfy cl 407.214 of Schedule 2 to the Regulations and, accordingly the Tribunal would affirm the delegate’s decision to refuse his Subclass 407 visa application.

7. Mr Ellis was requested to provide the Tribunal with his comments or a response to this adverse information on or before 30 March 2023. The Tribunal advised in its letter that if his comments or response was not provided in writing by this date, or if a request has not been made for an extension of time in which to provide the information, the Tribunal may make a decision on the review without taking further action to obtain the information. Further, the Tribunal noted that Mr Ellis would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments at a hearing.

8. The Tribunal is satisfied that its s 359A invitation was properly dispatched to Mr Ellis’ email address indicated in his review application. Given the passage of time since lodgement of the review application, an officer of the Tribunal attempted to call Mr Ellis on 29 March 2023 on the telephone number indicated in his review application. He did not answer the call. Accordingly, the officer left a voicemail message informing Mr Ellis that he would lose his entitlement to a hearing if he did not respond to the Tribunal’s s 359A letter on or before 30 March 2023. Mr Ellis returned the officer’s call approximately 30 minutes later. When the officer repeated his earlier telephone advice that Mr Ellis would lose his entitlement to a hearing if he did not respond to the Tribunal’s s 359A letter on or before 30 March 2023, or request an extension of time by then in which to do so. Mr Ellis responded ‘That is okay’. No response has been received from Mr Ellis in response to the Tribunal’s s 359A letter nor has he requested additional time to do so. In these circumstances, s 359C of the Act applies and, pursuant to s 360(3) of the Act, Mr Ellis is not entitled to appear before the Tribunal. If a review applicant has no entitlement to a hearing, the effect of s 363A of the Act is that the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

9. Although Mr Ellis has not requested this, the Tribunal has considered whether it would be appropriate to adjourn the review under s 363(1)(b) of the Act to allow him additional time in which to provide evidence to support his review application. In this regard, the Tribunal has considered whether, in the circumstances of this case and having regard to the recent COVID-19 pandemic, evidence that Mr Ellis meets all of the relevant requirements of cl 407.214 of Schedule 2 of the Regulations is likely to be forthcoming, whether he has had a fair opportunity to provide the information or documents already especially having regard to the Tribunal officer’s conversation with Mr Ellis on 29 March 2023, and the significance of the information to Mr Ellis. The Tribunal has also taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2]where the courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.  

   [1] [2002] FCA 617.

   [2] [2012] FMCA 28.

10. As noted above, the Tribunal wrote to Mr Ellis under s 359A of the Act inviting him to comment on information that it appears there is no approved nomination in relation to him as required by cl 407.214 of Schedule 2 of the Regulations. Mr Ellis has failed to respond to the Tribunal’s s 359A letter or seek additional time in which to do so.

11. In the circumstances of this case, the Tribunal considers Mr Ellis has had sufficient time to respond to the Tribunal’s s 359A letter and thereby address the issue arising on review. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with
    s 359C of the Act.

12. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether Mr Ellis is the subject of an approved nomination for a Subclass 407 Training visa, made either by R F Sommerville & Z R Sommerville or another approved temporary activities sponsor, for a program of occupational training on the basis of meeting the criteria in reg 2.72A of the Regulations.

    Nomination of a position

14. Clause 407.214 of Schedule 2 of the Regulations as applicable in this case is set out in full in the Attachment to this decision.  Essentially, it requires that:

    ·an approved temporary activities sponsor has nominated a program of occupational training in relation to the visa applicant;

    ·the nomination has been approved and has not no ceased (emphasis added); 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 reg 1.13A and reg 1.13B of the Regulations); or it is reasonable to disregard any such information.

15. The nomination application made by R F Sommerville & Z R Sommerville in respect of the proposed occupational training to be offered to Mr Ellis in the position of Animal Attendants and Trainers nec ANZSCO 361199 was refused by the Department on 15 January 2019 and R F Sommerville & Z R Sommerville applied to the Tribunal for review of the Department’s decision to refuse that nomination. However, on 16 November 2022 the Tribunal affirmed the delegate’s decision to refuse R F Sommerville & Z R Sommerville‘s nomination for a training position in respect of Mr Ellis. Mr Ellis has failed to provide any response to, or comment on, this information when requested to do so by the Tribunal in its s.359A letter of 16 March 2023. Nor has he requested an extension of time in which to do so.

16. There is no evidence before the Tribunal that any other approved temporary activities sponsor has had a nomination approved under reg 2.72A of the Regulations in relation to occupational training for Mr Ellis.

17. In the circumstances, as the nomination application made by R F Sommerville & Z R Sommerville to which Mr Ellis’ Subclass 407 visa application relates has not been approved it follows that he does not meet the criteria in cl 407.214(b) of Schedule 2 to the Regulations. Therefore, cl 407.214 of Schedule 2 to the Regulations is not met.

18. Since the requirements that must be met by a person seeking a Subclass 407 visa have not been met, the decision under review must be affirmed.

19. The Tribunal affirms the decision not to grant Mr Ellis a Training Subclass 407 (Class GF) visas.

    Katie Malyon

    
    Member

    ATTACHMENT — Extract from the Migration Regulations 1994

    Schedule 2
    …

    Subclass 407 – Training
    ..

    407.213 Each of the following applies:
    (a) an approved sponsor has agreed, in writing, to be the sponsor of the applicant;
    (b) the sponsor is:

    (i) a temporary activities sponsor; or

    (ii) if the application was made on or before 18 May 2017-- a professional development sponsor or a training and research sponsor;

    (c) the sponsor has not withdrawn its agreement to be the sponsor of the applicant;
    (d) the sponsor has not ceased to be the sponsor of the applicant.

    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 2.75A; 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.

    407.215 The applicant does not 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.

    407.216 The applicant has adequate arrangements for health insurance during the period of the applicant's intended stay in Australia.

    407.217 The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:
    (a) if the applicant has held a substantive visa--whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and
    (b) whether the applicant intends to comply with the conditions to which the Subclass 407 visa would be subject; and
    (c) any other relevant matter.

    oOOo