Mambuay (Migration)

[2017] AATA 712

Mambuay (Migration) [2017] AATA 712 (2 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Marilou Mambuay
Mr Ferdinand Mambuay
Mr Iris June Mambuay
Miss Yoanna Sofia Mambuay

CASE NUMBER:  1620230

DIBP REFERENCE(S):  BCC2016/1354039 CLF2016/95376

MEMBER:Alison Mercer

DATE:2 May 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Training and Research (Class GC) visas.

Statement made on 02 May 2017 at 5:19pm

CATCHWORDS
Migration – Training and Research (Class GC) visa – Subclass 402 – Occupational Trainee stream – Nomination not lodged before 402 visa class closed – Applicant not the subject of a current nomination

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 2.57, r 2.72I, Schedule 2, cl 402.221

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 on 9 November 2016 to refuse to grant the visa applicants Training and Research (Class GC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 24 March 2016. At the time of application, Class GC contained one subclass: subclass 402 (Training and Research).

3. The criteria for a subclass 402 visa are set out in Part 402 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Occupational Trainee stream, the Research stream, or the Professional Development stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Occupational Trainee stream. This stream is for persons who want to improve their occupational skills (including in the field of sport) through participation in workplace-based training in Australia. The delegate refused to grant the visas because the applicant did not meet cl.402.221 of Schedule 2 to the Regulations, which requires that there is an approved nomination by either the Commonwealth or by another sponsor (if the latter, then the nomination must meet the criteria in r.2.72I and the nomination approval must not have ceased). The delegate found that the applicant had been identified in an occupational trainee nomination application made by McKKR’s Pty Ltd on 24 March 2016, but that the nomination application was refused by the Department on 29 September 2016. The applicant was notified of this but did not provide any further comments or information. The delegate therefore found that the applicant was not the subject of an approved nomination by a sponsor and therefore did not meet cl.402.221(1)(a). Moreover, there was no evidence to suggest that she was the subject of an approved nomination by the Commonwealth and thus she could not satisfy cl.402.221(1)(b). The delegate found that there was no evidence that the applicant had applied for or met the criteria for a subclass 402 visa in any of the other streams and therefore refused the visa.

5. The delegate refused to grant subclass 402 visas to the second, third and fourth named applicants (the applicant’s husband and children) on the basis that they did not meet the secondary visa criteria to be members of the family unit of a person who satisfied the primary visa criteria, and there was no evidence that they met the primary visa criteria in their own right.

6. The Tribunal received an application for review from the applicants on 29 November 2016.  It was accompanied by a copy of the delegate’s decision, and a copy of another decision made by the Department on 29 September 2016 to refuse to approve the nomination application made by McKKR’s Pty Ltd in relation to the applicant. The applicants also provided an authority by which they appointed Ms Syndee Restar, stated to be ‘sponsor’ as their representative and authorised recipient for correspondence for the purposes of the review.

7. On 29 March 2017, the Tribunal wrote to the applicants via their representative to invite them to attend a hearing to be conducted by conference telephone on 28 April 2017. The Tribunal also requested that the applicants provide evidence that the applicant was the subject of an approved nomination by a training and research sponsor or an occupational trainee sponsor that had not ceased, as required by cl.402.221 in the Occupational Trainee stream. The Tribunal noted that a nomination lodged and approved after 19 November 2016 would not satisfy this requirement as cl.402.221 requires a nomination that meets r.2.72I, and this regulation was repealed on 19 November 2016.

8. On 26 April 2017, the applicants’ representative indicated that the applicant would attend the hearing. 

9. On 27 April 2017, the Tribunal received from Ms Restar the following documents (via email):

   ·letter dated 31 August 2016 from the Department to McKKR’s Pty Ltd notifying the latter that it had been approved as a Temporary Work and Training sponsor on 31 August 2016, valid until 31 August 2019; and

   ·letter dated 31 January 2013 from the Department to McKKR’s Pty Ltd notifying the latter of the approval of a TH 442 Occupational Trainee Sponsorship, stated to be valid for 3 years until 31 January 2016.

10. The applicant appeared before the Tribunal by conference telephone on 28 April 2017 to give evidence and present arguments.

11. The applicant clarified that Ms Restar is the owner of the business in which the applicant was to undergo the training program devised by McKKR’s Pty Ltd, had the latter’s nomination been approved and the applicant had been granted the subclass 402 visa. The applicant said that Ms Restar is the person who would actually provide the training.  The applicant told the Tribunal that she understood that McKKR’s Pty Ltd’s nomination of her for an Occupational Trainee visa had been refused by the Department and no new nomination by it or any other approved sponsor had been approved by the Department.  She agreed that there was presently no approved nomination of her by an approved sponsor for occupational training purposes.  She confirmed that she has never been sponsored or nominated for occupational training by the Commonwealth of Australia.

12. The Tribunal discussed with the applicant its view that this meant that she was still unable to meet cl.402.221, which required that she was notified in a nomination by an occupational training sponsor, that the nomination met the requirements of r.2.72I and that the nomination had been approved. The applicant noted that McKKR’s was still an approved sponsor. The Tribunal acknowledged that this appeared to be the case, but noted that the applicant was still required to have had a nomination approved by McKKR’s, which she did not, or by another approved sponsor. The applicant queried whether McKKR’s Pty Ltd could now lodge a new nomination of her for the purposes of the subclass 402 visa application. The Tribunal noted that due to amendments made to the Occupational Training visa and nomination program made on 19 November 2016, r.2.72I had been repealed, as had the subclass 402 visa category. This meant that although her visa application was still outstanding and had to be assessed, a new nomination would not satisfy cl.402.221, as it would not meet r.2.72I, which had now been repealed. The Tribunal indicated it could not advise the applicant on whether she would be eligible for the new subclass 407 visa category, which replaced the subclass 402 visa category as of 19 November 2016.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant meets cl.402.221.

    Sponsorship and nomination requirements

15. In order to satisfy cl.402.221, applicants in the Occupational Trainee stream must meet certain requirements relating to sponsorship and, in some cases, nomination, depending on whether or not the occupational training is to be provided by the Commonwealth.

16. If the occupational training is to be provided to the applicant by the Commonwealth, the requirements are: that a training and research sponsor or an occupational trainee sponsor has agreed, in writing, to be the approved sponsor in relation to the applicant, that the sponsor has not withdrawn its agreement and that the sponsor has not ceased to be an approved sponsor.

17. If the occupational training is not to be provided to the applicant by the Commonwealth, then the applicant must be identified in a nomination which meets the criteria in r.2.72I by a training and research sponsor or occupational trainee sponsor, and that nomination must not have ceased. Additionally, there must be no adverse information known to Immigration about the nominator or a person associated with the nominator, or it must be reasonable to disregard any such information. ‘Adverse information’ and ‘associated with’ are defined in r.2.57 of the Regulations.

18. Based on the oral and documentary evidence before the Tribunal, the Tribunal makes the following findings:

    ·the applicant was nominated for a subclass 402 visa in the Occupational Trainee stream by McKKR’s Pty Ltd on 24 March 2016;

    ·the nomination application by McKKR’s Pty Ltd was refused by the Department on 29 September 2016;

    ·there is no record that McKKR’s Pty Ltd sought review of that decision at the Tribunal; and

    ·the applicant has not been nominated for a subclass 402 visa in the Occupational Trainee or any other stream by the Commonwealth of Australia.

19. As discussed with the applicant at the hearing, the Tribunal is satisfied that, although it may have been intended that the applicant undertake a program of training with Ms Restar, the nomination of the applicant for the training program was lodged by McKKR’s Pty Ltd, and there is no record of that organisation seeking review of the Department’s decision to refuse its nomination application within the prescribed mandatory timeframe within which it had to do so. It was conceded by the applicant that she is not, and has not ever been, the subject of a nomination for a training program made by the Commonwealth. Accordingly, the Tribunal finds that she is not the subject of an approved nomination that satisfies cl.402.221(1)(a) or (b).

20. As further discussed with the applicant at the hearing, cl.402.221(1)(a) requires that any nomination of the applicant by a sponsor is approved and meets r.2.72I of the Regulations. However, r.2.72I was repealed on 19 November 2016 as part of a series of legislative amendments to the Regulations which also saw the abolition of the subclass 402 visa and its replacement with a new subclass 407 (Training) visa – see the Migration Amendment (Temporary Activity Visas) Regulation 2016. The effect of this is that the legacy visas and legacy sponsor categories are closed to new applications from 19 November 2016. Further, as at 19 November 2016 no new nominations for applicants for Subclasses 401, 402 (Occupational Trainee stream) and 420 visas can be made, including by legacy sponsors and including for legacy visa applications made before 19 November 2016.[1]

    [1] Explanatory Statement, p.52

21. Therefore, the Tribunal finds that cl.402.221 is not satisfied and the applicant cannot be granted a subclass 402 visa.

22. The applicant has only sought to satisfy the criteria for a subclass 402 visa in the Occupational Trainee stream. No claims have been made in respect of the other visa streams. As requirements that must be met by a person seeking the visa in the Occupational Trainee stream have not been met, the decision under review must be affirmed.

23. The Tribunal must also affirm the decision not to grant the second, third and fourth named applicants (who are the husband and children of the applicant) subclass 402 visas as it finds that they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 402 visa, and there is no evidence to indicate that they meet the primary visa criteria in their own right.

    DECISION

24. The Tribunal affirms the decisions not to grant the applicants Training and Research (Class GC) visas.

    Alison Mercer
    Member