Loganimasi (Migration)

[2020] AATA 241

Loganimasi (Migration) [2020] AATA 241 (12 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rusiate Tuirabe Loganimasi

CASE NUMBER:  1717129

HOME AFFAIRS REFERENCE(S):           BCC2017/1184004

MEMBER:R. Skaros

DATE:12 February 2020

PLACE OF DECISION:  Sydney

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

Statement made on 12 February 2020 at 11:05am

CATCHWORDS
MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) –temporary activities sponsor withdrew sponsorship agreement – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A

Migration Regulations 1994 (Cth), Schedule 2, cl 408.222(3)(e)

CASE

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 Immigration and Border Protection on 17 July 2017 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 28 March 2017. 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.408.222(3)(d) of Schedule 2 to the Regulations because the applicant had not provided a letter of endorsement from Rugby Australia certifying the applicant’s ability to play, instruct, coach or adjudicate at the Australian national level or equivalent.

4. The applicant provided a copy of the delegate’s decision record with the application for review.

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 this case is whether the applicant meets all the applicable requirements in cl.408.222, which includes cl.408.222(3)(e).

   Sporting organisation passes the sponsorship or support test – cl.408.222(3)(e)

7. Paragraph 408.222(3)(e) requires that the relevant sporting organisation is either a temporary activities sponsor or a long stay activities sponsor and passes the sponsorship test in relation to the applicant. Alternatively, if the applicant was outside Australia when the application was made and the proposed length of stay as stated on the application form did not exceed 3 months, the sporting organisation must pass the support test in relation to the applicant: cl.408.222(3)(e). 

8. In this case, having regard to the applicant’s location at the time the application was made and the proposed length of stay stated on the application form, the sporting organisation is required to be an approved sponsor of the relevant kind and pass the sponsorship test. In summary, a person ‘passes the sponsorship test’ if the following requirements are met (see cl.408.111):

   ·the person is an approved sponsor, and has agreed, in writing, to be the sponsor of the applicant, and has not withdrawn that agreement and has not ceased to be the sponsor of the applicant; and

   ·either there is no adverse information known to Immigration about the person, or a person associated with that person, or it is reasonable to disregard any such information (‘adverse information’ and ‘associated with’ have the meanings given in rr.1.13A and 1.13B); and

   ·if the person is not a temporary activities sponsor, the visa application was made on or before 18 May 2017.

9. On 19 November 2019, the temporary activities sponsor, Casino Rugby Union Club Inc., advised the Tribunal that they wish to withdraw their agreement to be the applicant’s sponsor.

10. On 19 December 2019 the Tribunal wrote to the applicant in accordance with the requirements in s.359A and invited the applicant to comment on or respond to the information that his temporary activities sponsor had withdrawn their agreement to be his sponsor which the Tribunal explained is relevant to the requirement in cl.408.111 which required the sponsor to pass the sponsorship test.  The Tribunal also explained that if it relied on that information the decision under review may be affirmed.

11. On 3 January 2020, after the prescribed period had passed, the Tribunal received a request for an extension of time to respond. 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40.

12. The Tribunal wrote to the applicant advising he had lost his right to a hearing  however the Tribunal would not be making a decision until after 17 January 2020 and the applicant could submit any material for the Tribunal’s consideration.  To date the Tribunal has not received any response from the applicant. In the circumstances, the Tribunal has decided to proceed to a decision on the information before it.

13. Information held by the Department shows that the Casino Bulls Rugby Union Club is an approved temporary activities sponsor.  Although the Department file shows that the club had, at time of application, agreed in writing to sponsor the applicant, current information before the Tribunal at the time of this decision indicates that the sponsor has withdrawn their sponsorship of the applicant.

14. Given the evidence before it, the Tribunal is not satisfied that the applicant passes the sponsorship test. It follows that the requirements of cl.408.222(3)(e) are not met.

15. In light of the above findings, the Tribunal finds that cl.408.222 is not satisfied as a whole.

16. The applicant has not made claims against the other streams in cl.408.22. Accordingly, cl.408.219A is not met.

17. As one of requirements for the visa is not met, the decision under review must be affirmed.

    DECISION

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

    R. Skaros
    Senior Member