LI (Migration)

[2022] AATA 2239

LI (Migration) [2022] AATA 2239 (28 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ZIQI LI

REPRESENTATIVE:  Mr KI YOUNG KIM (MARN: 1683672)

CASE NUMBER:  1832961

HOME AFFAIRS REFERENCE(S):        BCC2018/3273726

MEMBER:Warren Stooke AM

DATE:28 June 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 28 June 2022 at 11:27am

CATCHWORDS
MIGRATION – Training (Class GF) visa – Subclass 407 (Training) – subject of an approved nomination – decision under review affirmed

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

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 6 November 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 29 August 2018. The delegate refused to grant the visa on the basis that the applicant did not have an approved sponsor for the proposed training.

3. The applicant appeared before the Tribunal on 28 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The Tribunal asked the applicant if he had provided a copy of the delegate’s decision to the Tribunal with his application for review and he responded that he was not clear, as it was done by the agent.

5. The Tribunal informed the applicant that a copy of the decision was provided to the Tribunal on 9 November 2018 and asked if that was correct and the applicant responded: “Yes”.

6. The applicant stated that he had read the decision of the delegate and that “it was refused because my training program was not any good. So it was refused.”

7. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. Clause 407.214 of Schedule 2 of the Regulation as applicable in this case is set out in full in the Attachment to this decision. Based on the evidence before it, the Tribunal is satisfied that the approved sponsor is not a Commonwealth agency. Accordingly, cl.407.214 is applicable.

10. The applicant provided evidence that he arrived in Australia in September 2013.

11. The Tribunal asked the applicant where he was currently working and he responded that he was working for the Multitech Group, where he had been for 2 years.

12. The applicant stated that his previous employment was with Raymond Li from Brighten Technologies.

13. The Tribunal asked the applicant if he had an approved sponsor and he responded: “Yes”.

14. The Tribunal advised the applicant that there was no evidence before the Tribunal that the government Department has approved that sponsor (Brighten Technologies) and the applicant responded: “For this not clear”.

15. The Tribunal asked the applicant that he says he has Brighten Technologies as an approved sponsor but does not work for this company and the applicant responded: “When applied in 2019, I was working with them but I don’t work with them now”.

16. The Tribunal read to the applicant the following paragraph from the delegate’s decision of 6 November 2018 that was provided to the Tribunal with the application for review:

    “The applicant has applied for the grant of a Training (subclass 407) visa on the basis
    that he would undertake occupational training with the approved sponsor BRIGHTEN
    TECHNOLOGIES PTY LTD
    A nomination application was lodged on 28 August 2018 that named the applicant in a nominated program of occupational training. This application was refused on 3 October 2018.
    As a result, the applicant was no longer named in a nominated program of occupational training.”

17. The Tribunal noted that the decision clearly says that the application was refused and asked why the applicant says that he has a sponsor and that Brighten Technologies applied but were refused – Do you understand?

18. The applicant responded: “Means, I do not have any sponsor”.

19. The Tribunal responded: “Correct” and the applicant replied: “OK”.

20. The Tribunal invited the applicant to make further comment and the applicant declined to make any further comment.

    Nomination of a position

21. The delegate’s decision of 6 November 2018 states that the nomination application in respect of training to be offered to the applicant was refused by the Department on 3 October 2018.

22. Based on the evidence at hearing, that the applicant no longer works with Brighten Technologies and confirmation by the applicant that he does not have an approved training sponsor, the Tribunal is satisfied that the applicant does not meet the criteria in cl.407.214(b) of Schedule 2 to the Regulations. Therefore, cl.407.214 of Schedule 2 to the Regulations is not met.

23. On the basis that the requirements that must be met by a person seeking a Subclass 407 visahave not been met, the decisions under review must be affirmed.

    DECISION

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

    Warren Stooke AM
    Member

    ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    407.214  

    If the approved sponsor is not a Commonwealth agency:

    (a)  the sponsor has nominated a program of occupational training in relation to the applicant under paragraph 140GB(1)(b) of the Act; and

    (b)  the nomination has been approved under section 140GB of the Act on the basis of the criteria in regulation 2.72A; and

    (c)  the approval of the nomination has not ceased under regulation 2.75A; and

    (d)  either:

    (i)  there is no adverse information known to Immigration about the sponsor or a person associated with the sponsor; or

    (ii)  it is reasonable to disregard any adverse information known to Immigration about the sponsor or a person associated with the sponsor.