Kalansooriya Arachchige (Migration)

[2023] AATA 954

Kalansooriya Arachchige (Migration) [2023] AATA 954 (7 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Binara Madushan Kalansooriya Arachchige
Mrs Jayani Chethana Ganegoda

REPRESENTATIVE:  Ms Anoja Niroshini Vithanage

CASE NUMBER:  1911234

HOME AFFAIRS REFERENCE(S):          BCC2019/234013

MEMBER:Mary Sheargold

DATE:7 March 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 07 March 2023 at 10:12am

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, 359
Migration Regulations 1994, Schedule 2, cl 407.214, 407.311; rr 2.72, 2.75

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 16 April 2019 to refuse to grant the applicants Training (Class GF) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 28 January 2019. The criteria for a Subclass 407 visa are set out in Part 407 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). At least one member of the family unit must satisfy the primary criteria, comprising of the common criteria in Subdivision 407.21 and the criteria of one the alternative clauses set out in Subdivision 407.22.

3. The delegate in this case refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy cl 407.214(b) of Schedule 2 to the Regulations because the nomination application made by Robert Moretti as trustee for Beyond Reach Unit Trust for the position of Chef was not approved.

4. The first named applicant appeared before the Tribunal on 26 September 2022 to give evidence and present arguments.  The Tribunal also received oral evidence from Mr Robert Moretti, the nominating sponsor.  

5. The applicants were represented in relation to the review, but the representative did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether there is an approved nomination to support the application.

8. The nominator’s nomination was refused by the Department. The nominator lodged a review of that decision with the Tribunal. The Tribunal subsequently affirmed this decision. This means there is no approved nomination.

9. On 30 November 2022, the Tribunal wrote to the applicants pursuant to s.359A of the Act, inviting them to provide comments in writing on information that the Tribunal considered would be part of the reason for affirming the decision under review. The adverse information put to the applicants was that the nomination application made by Robert Moretti ATF Beyond Reach Unit Trust (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the AAT. This means that the nominator’s application for the nominated position has not been approved. It was stated that this information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination. The response was due 14 December 2022.

10. On 14 December 2022, the applicant’s representative provided the following documents in response to the Tribunal’s request:

    ·correspondence from VETASSESS (assessment authority) dated 13 December 2022;

    ·correspondence to VETASSESS (assessment authority) dated 25 October 2022;

    ·VETASSESS Request for urgent processing form dated 30 November 2022;

    ·copy of the Tribunal’s 359A letter dated 30 November 2022;

    ·notice of nomination approval for the applicant’s employer in respect of the applicant for a subclass 186 visa dated 29 August 2022; and

    ·a Trades Recognition Australia job ready final assessment outcome dated 7 December 2018.

11. Essentially, the applicants conceded both at the hearing and in the response to the Tribunal’s invitation to comment under s.359A of the Act that they understood there was no prospect of this application succeeding because there was no approved nomination, but sought a stay of a decision from the Tribunal whilst the first named applicant finalised the requirements for a Subclass 186 visa application.  The Tribunal notes that the first named applicant is the subject of an approved nomination for that Subclass 186 visa and notes for the record that the nominating sponsor relies on the first named applicant as the head chef in the restaurant business where he works. 

12. The Tribunal counselled the applicants repeatedly that it was not in a position to stay making decisions to allow time for alternative arrangements to be made, and that the Tribunal was obliged to fulfil its objectives of making decisions that are fair, just, economical, and quick.  The Tribunal has worked to resolve this matter as expeditiously as possible.

13. Ultimately, there is no approved nomination and the applicants accept that this application cannot succeed without an approved nomination.  As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

14. Pursuant to cl.407.311(b), the Tribunal must also affirm the decision to refuse to grant a Subclass 407 visa to the secondary applicant as she is not the member of a family unit of a person who holds a Subclass 407 visa, and there is no evidence that she meets the primary criteria in her own right.

    DECISION

15. The Tribunal affirms the decisions not to grant the visa applicants Training (Class GF) visas.

    Mary Sheargold
    Member