Jiang (Migration)

[2020] AATA 529

Jiang (Migration) [2020] AATA 529 (3 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Jiajia Jiang

CASE NUMBER:  1802202

DIBP REFERENCE(S):  BCC2017/3900262 CLF2018/13798

MEMBER:Karen Synon

DATE:3 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 03 March 2020 at 2:22pm

CATCHWORDS
MIGRATION – Training (Class GF) visa – Subclass 407 (Training) – subject of an approved nomination – nomination refused – pending appeal in the Federal Court – Tribunal declined indefinite adjournment of decision – temporary nature of visa – additional time to seek prospective sponsor – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 407.214

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 Mohammed [2019] FCAFC 49
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 23 October 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 29 January 2018 and provided a copy of the department’s decision.

5. The applicant was represented in relation to the review by her registered migration agent until 22 January 2020 when the applicant advised in writing that she was no longer being represented by an agent.

6. The applicant appeared before the Tribunal on 3 March 2020 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. On 9 January 2020 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting her 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 her made by HERS LUXE PTY LTD, her proposed nominator, was affirmed by the Tribunal on 4 November 2019 and further, there was no information contained on the Department’s file records that she 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, she must be the subject of an approved nomination by a work sponsor.  Comments or a response in writing were invited by 23 January 2020.

10. On 22 January 2020 the following relevant response was received:

    My nomination work sponsor case has been appeal that is presently taking place in the Federal Court.  What I need to do next?

11. On the same day, the Tribunal emailed the applicant and reiterated that her comments or response should be received by 23 January 2020.  No further comments or response were received.

12. At the commencement of the hearing the applicant provided documents relating to the judicial review of the related nomination refusal affirmed by the Tribunal on 4 November 2019.

13. During the hearing the applicant agreed that she is not the subject of an approved 407 nomination.  She explained that after arriving in Australia in 2012 she was to commence a Bachelor of Commerce at RMIT however only completed her English-language course and a Diploma of Commerce.  She did not continue onto the bachelor’s degree because it did not interest her and instead completed what she descried as a Diploma of Broker Mortgage.  These are the only courses she completed during a lengthy period travelling in and out of Australia.  In response to the Tribunal’s question about what she has been doing recently in Australia the applicant responded “not much“ and confirmed she has not been working and that her family supports her.  Asked how she came to be sponsored by HERS LUXE the applicant said her friend, Yumeng Chen, is a director of the business and she completed some relevant study in Japan and China totaling about six months.  The applicant was then employed at HERS LUXE for four months in 2017.  After this she was offered the training position.  She has not been employed anywhere else as a hairdresser.

14. The Tribunal asked the applicant if she understood that it could not make a decision in her favour because she is not the subject of an approved nomination by standard work sponsor. She indicated she did understand.

15. The applicant asked the Tribunal if it is possible to wait until her employer receives the decision from the Court about the related nomination.  The Tribunal explained that court processes can be extremely lengthy and of an indeterminate period and, even if the Court finds there has been a jurisdictional error, then the nomination decision would still again need to be reconsidered by the Tribunal and together these processes could be very prolonged.  The Tribunal said it was not prepared to delay the finalisation of this case for what would likely be an indefinite period of time.  The Tribunal said that in any case it may be open to the applicant to apply for another 407 visa offshore if the related nomination was eventually approved.  The applicant then asked the Tribunal if she could have additional time to find a new employer.  The Tribunal asked her whether she had any prospective sponsors or employers.  She said no.  The Tribunal noted that because finding a prospective sponsor and/or employer is a lengthy process and her evidence is that she has not undertaken any steps towards this, it was not prepared to delay its decision-making for this reason again suggesting that she could seek migration advice as to whether it would be open to her to apply for another visa offshore should she be successful in finding a new sponsor or employer.  The applicant said she does not want to disrupt her life here to return overseas.  The Tribunal noted that her own evidence is that she has not been working in Australia since a four month period in 2017 and that there appeared to be nothing stopping her from returning to her home country and seeking an alternative visa offshore to return to Australia should she desire to do so.  The applicant said that she married in April 2018 and is now estranged from her husband due to family violence.  Her estranged husband is on an Investor visa.  The applicant also said her previous migration agent did not tell her she could look for another sponsor or employer.

16. In relation to the substantive issue on review, as there is no approved nomination of a program of occupation training in relation to the applicant which could satisfy cl.407.214, the Tribunal finds that the applicant is not presently the subject of an approved nomination by a standard work sponsor.

17. In deciding to proceed to decision and refuse the applicant’s request to defer its decision-making until after the judicial review of the related nomination is finalised, the Tribunal has considered the decisions of 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 also the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1. The Tribunal believes that the applicant has been given a fair opportunity to present her case and that unlike in circumstances where an additional piece of evidence could satisfy a regulatory requirement (such as in MIAC v Li and MIBP v Singh), there can be no reasonable expectation that a favourable outcome would result should the Tribunal wait what is likely to be lengthy period for the outcome of the judicial review of a related nomination.

18. Of relevance to this consideration is also the authority of MIBP v Mohammed [2019] FCAFC where the Court found that it was legally unreasonable for the Tribunal to affirm the refusal of a permanent partner visa when the application for review in relation to the associated temporary partner visa had not been validly determined.  However the Tribunal is of the view that the facts of this case are distinguishable by the temporary nature of the Training (class GF) Training (subclass 407) visa and the fact that this visa class, which allows participants to take part in workplace-based occupational training activities to improve their skills, can be applied for offshore and only allows a short term stay of up to 2 years.

19. In the alternative the applicant also asked for additional time to find a new sponsor or employer.  However the Tribunal is of the view that had the applicant been able to secure a new sponsor or employer she could have done so after the initial nomination was refused in January 2018, period of over two years ago, or that she would, at a minimum, have made some preliminary inquiries or investigations before the hearing.  She has not done so.  When the Tribunal suggested that she could return to her home country and potentially apply for another subclass 407 visa offshore the applicant said she did not want to disrupt her life here but, by her own evidence, she has not worked in Australia since 2017 and provided no other persuasive reasons for why she should be permitted to stay in Australia without either a prospective or pending sponsor or employer.

20. 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.

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

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

    DECISION

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

    Karen Synon
    Member

    
    

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