Luchmun (Migration)

[2022] AATA 1983

Luchmun (Migration) [2022] AATA 1983 (5 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Shikha Luchmun
Mr Kevin Luchman
Miss Elanah Reese Luchmun

CASE NUMBER:  1901580

HOME AFFAIRS REFERENCE(S):          BCC2018/4596121

MEMBER:Warren Stooke AM

DATE:5 May 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 5 May 2022 at 9:02am

CATCHWORDS
MIGRATION – Training (Subclass 407) visa – Subclass 407 – applicant was not identified in an approved nomination by an approved Training and Research sponsor – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2

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 10 January 2019 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 19 October 2018. The delegate refused to grant the visa on the basis that the applicant was not identified in an approved nomination by an approved Training and Research sponsor.

3. The applicants appeared before the Tribunal on 27 January 2022 and 10 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr ElKhoury, at the hearing of 10 March 2022.

4. The Tribunal corresponded with the applicant on 1 April 2022, with a request for comment on the decision of the Tribunal in Case Matter: 1835890 relating the proposed sponsor, CLICK ACCOUNTANTS AND CONSULTANTS PTY LTD (the nominator).

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 the applicant has an approved sponsor for the training provided in support of a 407 visa.

7. The applicant was granted a Bridging Visa A on 19 October 2018, that commenced on 23 October 2018 upon the cessation of a Student (Temporary) visa.

8. The applicant provided evidence of a contract of employment with Click Accountants and Consultants Pty Ltd that was dated 7 October 2018 and was in support of a 407 Training assignment for 30 hours per week and a salary of $45,000 for a period of 24 months.

9. On 1 April 2022, the Tribunal corresponded with the applicant, as follows:

   “INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – MS SHIKHA LUCHMUN, MR KEVIN LUCHMAN AND MISS ELANAH REESE LUCHMUN
   I am writing on instruction from the Member conducting your review, in relation to the
   applications for review made by you in respect of decisions to refuse to grant Training (Class GF) visas.

   In conducting the review, we are required by the Migration Act 1958 to invite you to
   comment on or respond to certain information which we consider would, subject to
   your comments or response, be the reason, or a part of the reason, for affirming the
   decisions under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are:

   ·The application for approval of the nominated position made by CLICK

   ACCOUNTANTS & CONSULTANTS PTY LTD (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision, but it was recently dismissed by the AAT. This means that the nominator’s application for the nominated position has not been approved.

   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.

   If we rely on this information in making our decision, we may find that the position
   specified in your visa application is not the subject of an approved nomination. This
   would mean that you do not satisfy a requirement for the grant of the visa and that we must affirm the decision that is under review.

   You are invited to give comments on or respond to the above information in writing.
   Your comments or response should be received by 19 April 2022. If the comments or response are in a language other than English, they must be accompanied by an
   English translation from an accredited translator.

   If you cannot provide your written comments or response by 19 April 2022, you may
   ask us for an extension of time in which to provide the comments or response. If you
   make such a request, it must be received by us by 19 April 2022 and you must state
   the reason why the extension of time is required.

   We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

   If we do not receive your comments or response within the period allowed or as
   extended, we may make a decision on the review without taking any further action to
   obtain your views on the information. You will also lose any entitlement you might
   otherwise have had under the Migration Act 1958 to appear before us to give
   evidence and present arguments.

   If you wish to withdraw your review application
   If your circumstances have changed and you no longer wish to continue with this review, please complete the enclosed withdrawal form and return it to us as soon as possible.

   If you have any questions, please email [email protected], or contact me on the
   number listed below, or telephone our national enquiry line on 1800 228 333. For
   language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.”

10. The applicant provided evidence of the following qualifications:

    • DBA (Doctor of Business Administration), Victoria University, 2018
    • Master of Business (Tourism Management), Victoria University, 2011
    • Master of Business (Marketing Management), Victoria University, 2010
    • Professional Post Graduate Diploma in Marketing, The Chartered Institute of Marketing, 2004
    • Diploma in Travel and Tourism, The Association of Professional Studies, 2003
    • Diploma in Marketing, The Chartered Institute of Marketing, 2002
    • Certificate in Marketing, The Chartered Institute of Marketing, 2001

11. The applicant provided evidence that Click Accountants and Consultants Pty Ltd had already provided the training and that she did not need any visa.

12. The applicant provided evidence that the agent had submitted the wrong ANZSCO Code for the Training occupation, as ‘Accommodation and Hospitality Managers (nec) – ANZSCO Code: 141999’, when the correct occupation was Consultant – ANZSCO Code: 224711.

13. The applicant stated that she had not applied for any other visa and that her daughter is an Australian Citizen. It was further stated that the applicant would have to take a decision which was best for her daughter.

14. The applicant stated that she had consulted a lawyer, who advised that as her daughter was an Australian citizen there were options for the parents.

15. The applicant expressed concern regarding s.48 and the Tribunal stated that the Tribunal is not able to provide advice in relation to such matters and that it would be appropriate to discuss the matter with her legal advisors and the Department.

16. The applicant also stated that her legal advisor had discussed a s.351 appeal to the Minister and the Tribunal responded that it was an option for the applicant to make an application direct to the Minister.

    Witness Evidence – Mr Elkhoury (former employer and sponsor)

17. The witness provided evidence that he was a Director and owner of Click Accountants and Consultants at the time of the employment of the applicant and personally effected the application for the 407 Training visa sponsorship.

18. The witness stated that the company had demerged and that he was no longer an employee or owner of Click Accountants and Consultants Pty Ltd. It was confirmed in evidence that the witness’s new entity had its own ABN.

19. The Tribunal advised the witness that Click Accountants and Consultants Pty Ltd had been invited to attend the hearing and had declined to participate. The Tribunal noted that Mr Elkhoury did not have an authority to represent Click Accountants and Consultants Pty Ltd, with which he agreed.

20. The witness stated that he was operating his own business and was prepared to employ the applicant.

21. The Tribunal advised the parties that future employment would need to be canvassed with the Department of Home Affairs, as such considerations were not within the jurisdiction of the Tribunal in the current matter of a 407 Training visa before the Tribunal.

    Conclusion

22. The applicant has only sought to satisfy the criteria for a Subclass 407 visa. No claims have been made in respect of the other visa streams; however, evidence was provided that the applicant is currently considering pursuing an employer Sponsored Visa with Mr Elkhoury’s company. As the requirements that must be met by a person seeking the visa in the 407 Training (Class GF) stream have not been met, the decision under review must be affirmed.

23. On the basis that the primary applicant has not met the requirements for the grant of a 407 Training visa, it follows that the secondary applicants are not members of a family unit that has met the criteria for the grant of a visa.

    DECISION

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

    Warren Stooke AM
    Member