Hoang (Migration)

[2023] AATA 3153

Hoang (Migration) [2023] AATA 3153 (27 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Trong Thang Hoang
Mrs Thu Hoai Hoang
Miss Truc Linh Hoang

REPRESENTATIVE:  Mrs Nguyen Thi Doan (MARN: 1795946)

CASE NUMBER:  1929503

HOME AFFAIRS REFERENCE(S):          BCC2019/3980456

MEMBER:Wan Shum

DATE:27 September 2023

PLACE OF DECISION:  Sydney

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

Statement made on 27 September 2023 at 12:29pm

CATCHWORDS
MIGRATION – Training (Class GF) visa – Subclass 407 (Training) – enhancing skills of café or restaurant manager – subject of approved training nomination – refusal of related nomination application affirmed in separate review – applicant’s intention to apply for judicial review – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB
Migration Regulations 1994 (Cth), rr 2.72A, 2.72B(3)(c), Schedule 2, cl 407.214(b)

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 8 October 2019 to refuse to grant the applicants Training (Class GF) Subclass 407 visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. A Subclass 407 visa involves a nominating organisation, if it is not a Commonwealth agency, seeking approval as a Temporary Activity sponsor or a Training and Research sponsor and then making a nomination of a program of occupational training in relation to a person under s140GB of the Act and reg 2.72A of the Migration Regulations 1994 (Cth) (the Regulations). The approved Temporary Activity sponsor in this case, LKJV Group Pty Ltd, sought approval on 11 August 2019 for the program of occupational training of ‘Enhancing Skills’ and the occupation of the training position was ‘Cafe or Restaurant Manager’ (ANZSCO 141111).

3. The first named applicant (the applicant) was identified for the training position.

4. A delegate of the Minister for Home Affairs decided not to approve the nomination and, as a consequence, the delegate in this case refused to grant the Subclass 407 visas to the applicants because cl 407.214 in Schedule 2 of the Regulations was not met.

5. Applications for review were lodged in respect of these decisions and both parties were represented in relation to the review by the same representative named on the front page of this decision.

6. The first and second named applicants appeared before the Tribunal by videoconference using Microsoft Teams on 7 August 2023. The Tribunal also received oral evidence from Mr Hai Phi Long Hoang as the current Director of LKJV Group Pty Ltd. The representative attended from the same location.

7. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the requirements relating to the nomination of the training position are met as set out in cl 407.214.

9. On 25 August 2023, the Tribunal affirmed the decision in respect of the nomination made by LKJV Group Pty Ltd. Given this, the nomination of the training position relevant to the applicant’s visa application has not been approved.

10. The Tribunal invited the applicants to comment on this information and further time was sought to respond. The Tribunal agreed to extend the time for response until 26 September 2023. On that date, the applicant responded that he believed that the circumstances surrounding his application, as well as the nuances of reg 2.72B(3)(c), warrant a comprehensive review by a judicial authority and indicated that he would like to proceed to judicial review. The applicant is only able to seek judicial review once a decision has been made by the AAT on this application, and he was advised accordingly. The Tribunal has thus proceeded to a decision on the material before it.

11. As the nomination made by LKJV Group Pty Ltd in relation to the applicant was not approved under section 140GB of the Act on the basis of the criteria in regulation 2.72A, the applicant does not meet the requirements of cl 407.214(b) and the Tribunal must affirm the decision under review.

    DECISION

12. The Tribunal affirms the decision not to grant the applicants Training (Class GF) visas.

    Wan Shum
    Member