Kayikci (Migration)

[2020] AATA 4020

Kayikci (Migration) [2020] AATA 4020 (1 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Burcu Kayikci

CASE NUMBER:  1915482

HOME AFFAIRS REFERENCE(S):          BCC2019/233321

MEMBER:Karen Synon

DATE:1 September 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Activity (Class GG) visa.

Statement made on 01 September 2020 at 11:31am

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – Special Programmes – academic researcher – ‘passes the sponsorship test’ – sponsorship withdrawn – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 408.111, 408.219A; 408.228

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 27 May 2019 to refuse to grant the applicant a Temporary Activity (Class GG) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 30 April 2019. At the time of application, Class GG contained one subclass: Subclass 408 (Temporary Activity). The criteria for a Subclass 408 visa are set out in Part 408 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Applicants must satisfy the common criteria in Subdivision 408.21 and the criteria of one the alternative clauses set out in Subdivision 408.22.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl.408.228 of Schedule 2 to the Regulations because she did not satisfy any of the alternative program streams.

4. The applicant applied for review of the primary decision on 15 June 2019.

5. On 11 August 2020 the Tribunal wrote to the applicant pursuant to s.359A and s.359(2) of the Act.  Pursuant to s.359A the applicant was invited to comment or respond to the following information:

   On 8 January 2020 the Tribunal received the following information:

   Dear Case officer

   Please be advised that the Sponsor Australian Turkish educational and cultural foundation Inc has withdrawn the sponsorship for Miss Burcu Kayikci.

   Please see attached the 1446 form signed by organisation President Mr Alpasian Cimen…

   The email included a 1446 withdrawal form signed 8 January by Mr Alpasian Cimen.

6. The applicant was advised that this information is relevant to the review because it is a requirement under cl.408.288 of the Migration Regulations that, for the grant of a Special Program 408 visa, the program is to be conducted by a person or organisation that passes the sponsorship test in relation to the applicant. Clause 408.111(a)(iii) requires that, to pass the sponsorship test, the person or organisation has not withdrawn the agreement to be the sponsor of the applicant. The applicant was further advised that, if we rely on this information, we may find that the Australian Turkish Educational and Cultural Foundation Inc, does not pass the sponsorship test and, as a result, that she does not satisfy cl.408.228. This would mean she does not satisfy the requirement for the grant of a Subclass 408 visa and we must affirm the decision under review.

7. The applicant was also invited, in accordance with s.359(2), to provide the following information in writing:

   ·     Information relating to whether you are sponsored, including who sponsoring you and the details of that sponsorship, for any of the following programs as required by cl.408.228 for a Subclass 408 Special Program Stream visa:

   oYouth Exchange Program;

   oSchool to School Interchange Program

   oSchool Language Assistants Program; or

   oOther programs (cultural enrichment or community benefit).

8. The s.359A invitation to comment or respond and the s.359(2) invitation to provide information was sent to the applicant’s advised email address on 11 August 2020.  In this letter the applicant was advised that if we did not receive her comments or response and the invited information in writing by 25 August 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments or response and the information and applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. The applicant did not provide the comments or response or the information within the prescribed period and no extension of time in which to respond was requested.

10. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal is satisfied that it has communicated with the applicant via by advised email in a prescribed manner. The Tribunal has accordingly decided to proceed to decision without taking further steps to obtain the information.

11. In making this decision the Tribunal notes that the visa was refused on 27 May 2019 and the review application was lodged on 15 June 2019 and the applicant has not provided any substantive submissions to the Tribunal including at the time the application for review was lodged.

12. In addition, the Tribunal has waited four full business days before proceeding to decision to consider any explanation for why a response or the information was not provided within the prescribed period but no explanation has been provided.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The primary decision records that the delegate noted the applicant had been offered a position of Researcher but found that this did not satisfy any of the Special Programmes identified in cl.408.228 (2) to (5), which include: Youth Exchange Program; School to School Interchange Program; School Language Assistants Program; and 'Other Programs.'  The delegate found that cl.408.228(5) was therefore not satisfied and that the applicant also did not meet any of the alternative streams for the subclass 408 visa identified in cl.408.22 and thus did not satisfy cl.408.291A.

15. While the specific issue on which the delegate refused the visa was cl.408.228(5), on review the primary issue is whether the applicant is relevantly sponsored by an organisation that passes the sponsorship test set out in cl.408.228 which in turns requires that, to pass the sponsorship test, the organisation has not withdrawn the agreement to be the sponsor of the applicant: cl.408.111(a)(iii).

16. The various clauses set out in Subdivision 408.22 of Schedule 2 to the Regulations represent alternative pathways to the grant of the visa. One of these clauses must apply to the applicant for her to meet cl.408.219A, which is an essential requirement for the visa.

17. A review of the application form confirms that the applicant nominated a “special programmes” category as an “academic researcher” to “research the English/Turkish language communications and cultural social experiments between students and parents, research decline in numbers over the past 5 year research affecting components implement new strategies to increase student volume setting new up to date curriculum consultation”. [1]  She nominated her sponsor as the Australian Turkish Education and Cultural Foundation Inc and the contact person at this organisation as Alpasian Cimen, Director.

    [1] Exactly as wriiten in the application.

18. As put to the applicant in accordance with s.359A on 8 January 2020, Mr Alpasian Cimen, the President of the Australian Turkish Educational and Cultural Foundation Inc, withdrew its sponsorship of the applicant.  For this reason, and because the applicant has not provided any information that she is sponsored by any other person or organisation for any of the alternative streams in cl.408.228, the Tribunal finds that the applicant does not satisfy cl.408.111(a)(iii) which requires that she be sponsored by a person or organisation that passes the sponsorship test in relation to an applicant that has not been withdrawn.

19. Because the applicant does not satisfy cl.408.111(a)(iii), she does not satisfy cl.408.291A which requires that a clause in Subdivision cl.408.22 applies to the applicant.

20. Because cl.408.219A, which is one of the essential requirements for the visa, is not met, the decision under review must be affirmed.

    DECISION

21. The Tribunal affirms the decision not to grant the visa applicant a Temporary Activity (Class GG) visa.

    Karen Synon
    Member