Fayad Benitez (Migration)

[2022] AATA 4637

Fayad Benitez (Migration) [2022] AATA 4637 (2 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alejandro Fayad Benitez

CASE NUMBER:  1914067

HOME AFFAIRS REFERENCE(S):          BCC2019/1265121

MEMBER:Alan McMurran

DATE:2 December 2022

PLACE OF DECISION:  Sydney

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

Statement made on 02 December 2022 at 6:32pm

CATCHWORDS

MIGRATION – Training Visa (Class GF) visa – Subclass 407 (Training) – no approved nomination by a training and research sponsor – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 65, 140
Migration Regulations 1994, Schedule 2, cl 407.214; rr 2.72, 2.75

statement of decision and reasons

application for review

1. This is an application lodged 3 June 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 22 May 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 applicant, Mr Alejandro Fayad Benitez, a citizen of Colombia, was sponsored for a program of occupational training in relation to a Subclass 407 visa made under s 140GB of the Act and reg 2.72A of the Regulations, and for the occupation of Mineralogist (ANZSCO 2344 Natural and Physical Science Professionals nec).

3. The visa applicant applied for the visa on 13 March 2019. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of cl 407.214 of Schedule 2 to the Regulations. This is because the applicant was not identified in an approved nomination by a training and research sponsor that met the criteria in regulation 2.72A.

4. The applicant appeared before the Tribunal on 3 November 2022 to give evidence and present arguments in a combined hearing with the review of the refusal of the sponsorship nomination by the sponsor, AXT Pty Ltd . The Tribunal received oral evidence from the applicant and from the director of the sponsor, Richard Trett, and the sponsor’s manager in Perth, Melissa Narbey.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant has been identified in a training nomination application made by the sponsor for a Subclass 407 training visa which nomination has been approved, and whether the applicant meets the criteria in cl 407.214.

7. Regulation cl 407.214 provides that:

   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.

8. The Tribunal finds that the sponsor in this case is not a Commonwealth agency.

9. On 14 November 2022, the Tribunal decided to affirm the decision not to approve the nomination. The Tribunal produced its written reasons and provided a copy to the applicant.

10. On 14 November 2022, the Tribunal sent a letter to the applicant inviting him to respond to the information that the Tribunal had affirmed the Department’s decision not to approve the nomination in relation to the application for the training visa. The applicant was requested to respond by 28 November 2022. The applicant did not respond.

11. The Tribunal finds therefore that the applicant is not the subject of a nomination which has been approved under section 140GB of the Act on the basis of the criteria in regulation 2.72A.

12. The Tribunal further finds that there is no evidence of any further application by the applicant either for a visa or for an application which is under review in the Tribunal or on appeal through the courts.

13. For these reasons, cl 407.214 is not met.

    DECISION

14. The Tribunal affirms the decision not to grant the applicant a Training Visa (Class GF) (subclass 407) visa.

    Alan McMurran
    Member