Kwak (Migration)

[2022] AATA 4024

Kwak (Migration) [2022] AATA 4024 (15 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Seong Eun Kwak

REPRESENTATIVE:  Mr Kyu Man Hwang (MARN: 0530812)

CASE NUMBER:  1833017

HOME AFFAIRS REFERENCE(S):          BCC2018/3011515

MEMBER:Sean Baker

DATE:15 November 2022

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 15 November 2022 at 4:20pm

CATCHWORDS

MIGRATION – Training (Class GF) visa – Subclass 407 (Training) – subject of approved occupation training program – refusal of related nomination application affirmed on review – no appearance at hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 57, 65, 140GB(1)(b)

Migration Regulations 1994 (Cth), r 2.72A, Schedule 2, 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 23 October 2018 to refuse to grant the visa applicant a Training (Class GF) Subclass 407 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 10 August 2018. The delegate refused to grant the visa on the basis that the applicant did not have an approved Nomination, meaning the delegate was not satisfied the applicant met the requirements of clause 407.214(b) and therefore cl. 407.214. The applicant provided a copy of the delegate’s decision to the Tribunal.

3. The applicant appeared before the Tribunal on 15 November 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

4. The applicant was represented in relation to the review although the representative did not appear. Prior to the hearing the representative stated that he would not be acting for the applicant. However, at the hearing the applicant insisted that the representative was still her representative. As a result, this decision has been transmitted to the representative who the applicant has identified as continuing to be her representative.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether there is an approved nomination in place for the applicant.

7. Clause 407.214 as applicable in this case requires that (if the approved sponsor is not a Commonwealth agency) the sponsor has nominated a program of occupational training in relation to the applicant under paragraph 140GB(1) (b) of the Act and that that nomination has been approved under section 140GB of the Act on the basis of the criteria in regulation 2.72A.

8. In addition, this criterion also requires that:

   ·     the approval of the nomination has not ceased under regulation 2.75A; and

   ·     that either there is no adverse information known to Immigration about the sponsor or a person associated with the sponsor; or that it is reasonable to disregard any adverse information known to Immigration about the sponsor or a person associated with the sponsor.

9. In this case the applicant was identified in a Training Visa Nomination (GF 407) application, made by FOOD & LEISURE PTY LTD, on 10 August 2018. According to the Department decision, the nomination application lodged by FOOD & LEISURE PTY LTD was otherwise finalised on 10 October 2018 as it did not meet the criteria set out in regulation 2.72A for grant of a Training Visa Nomination. This information was put to the applicant under s. 57 of the Act with an invitation for her to comment on the fact that they were not identified in an approved Training Visa Nomination, that met the criteria set out in regulation 2.72A.

10. A second nomination application was lodged by FOOD & LEISURE PTY LTD on 03 October 2018 and was refused on 23 October 2018 as it did not meet the criteria set out in regulation 2.72A for grant of a Training Visa Nomination.

11. The delegate then proceeded to refuse the applicant’s application on the basis that they did not have an approved Nomination and therefore did not meet the requirements of clause 407.214(b) of the Migration Regulations.

12. A hearing was set down, but the applicant did not appear, stating that her representative had not informed her of the hearing. It was decided therefore that the review would continue.

13. A letter was sent to the applicant pursuant to s. 359A, on 27 October 2020, the review of the nomination lodged by FOOD & LEISURE PTY LTD, being the nomination referred to in paragraph 407.214, was finalised as no Tribunal reviewable decision by the Tribunal.

14. The applicant’s representative responded acknowledging the above.

15. On the basis that there had been a response to the letter, the Tribunal set down a hearing.

16. At hearing it was explained to the applicant that clause 407.214(b), requires that the nomination was approved under section 140GB of the Act on the basis of the criteria in regulation 2.72A. As the nomination lodged by FOOD & LEISURE PTY LTD, being the nomination referred to in paragraph 407.214, was finalised as no Tribunal reviewable decision by the Tribunal, and as there is no information of any sponsorship and nomination, this would indicate that the applicant cannot meet cl.407.214. The applicant indicated she understood.

17. The applicant indicated that she wished the decision to be sent to her representative, who she confirmed at the hearing was continuing to act for her.

18. The Tribunal has had regard to the information provided by the applicant. This indicates that there is no approved nomination in relation to the visa applicant. The applicant therefore cannot satisfy cl.407.214.

19. As this is the case, the Tribunal must affirm the decision.

    decision

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

    Sean Baker
    Member