JP Management Aust Pty Ltd (Migration)

[2021] AATA 4874

JP Management Aust Pty Ltd (Migration) [2021] AATA 4874 (5 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  JP Management Aust Pty Ltd

CASE NUMBER:  1826535

HOME AFFAIRS REFERENCE(S):          CLF2018/355211

MEMBER:C. Packer

DATE:5 November 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 5 November 2021 at 3:19pm

CATCHWORDS
MIGRATION – nomination – applicant failed to provide the information within the prescribed period – Tribunal is not satisfied that the nominee will participate in the nominated program – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140GB, 359, 360, 363
Migration Regulations 1994, rr 2.72, 2.73

CASES

Hasran v MIAC [2010] FCAFC 40

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 22 August 2018 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72A and r.2.72B of the Migration Regulations 1994 (the Regulations).

2. On 7 August 2018 the applicant applied for approval of a nomination of a program of occupational training (the nominated program) in relation to a holder of, or an applicant or proposed applicant for, a Subclass 407 (Training) visa (the nominee).

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy 2.72B(3).

4. On 20 October 2021 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the applicant to provide updated and current information that addressed the requirements in r.2.72A and r.2.72B. The letter also invited the applicant to comment on or respond to certain information. The invitation was sent to the last address provided in connection with the review and advised that, if the information and comments/response was not provided in writing by 3 November 2021 the Tribunal may make a decision on the review without taking further steps to obtain the information and comments/response, and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The applicant has not provided the information and comments/response within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information and comments/response.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the criteria for approval of the nomination.

8. Regulation 2.72A(5) provides the Minister is satisfied that the nominee will participate in the nominated program. However, on 20 October 2021 the Tribunal wrote to the applicant pursuant to s.359 inviting the applicant to provide updated and current information that addressed the requirements in r.2.72B. The letter also invited the applicant to comment on or respond to certain information that showed the nominee did not have the equivalent of at least 12 months of full-time experience in the occupation to which the occupational training relates (Wall and Floor Tiler) in the 24 months immediately preceding the time of the nomination.

9. The applicant has not provided the information and comments/response within the prescribed period, no extension has been granted, and the Tribunal has decided to proceed to decision without taking further steps to obtain the information and comments/response.

10. In light of the lack of any current information before the Tribunal that shows the nominee will participate in the nominated program, the Tribunal is not satisfied that the nominee will participate in the nominated program. The Tribunal finds r.2.72A(5) is not met.

    Conclusion

11. For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

    DECISION

12. The Tribunal affirms the decision not to approve the nomination.

    C. Packer
    Member