Mambuay (Migration)

This matter concerned an application for a Training and Research (Class GC) visa, subclass 402, Occupational Trainee stream, and related applications for family members. The applicant sought review of a decision by the Department of Immigration and Border Protection not to grant the visa. The primary issue before the Tribunal was whether the applicant met the sponsorship and nomination requirements stipulated in clause 402.221 of the Migration Regulations 1994.

The Tribunal was required to determine if the applicant had been identified in a nomination that met the criteria in regulation 2.72I, made by a training and research sponsor or occupational trainee sponsor, and if that nomination had not ceased. Alternatively, if the occupational training was to be provided by the Commonwealth, the Tribunal needed to consider if a relevant sponsor had agreed in writing to be the approved sponsor and had not withdrawn that agreement or ceased to be an approved sponsor. The Tribunal also had to consider the impact of legislative amendments that abolished the subclass 402 visa and replaced it with the subclass 407 (Training) visa.

The Tribunal found that the applicant's nomination by McKKR’s Pty Ltd on 24 March 2016 was refused by the Department on 29 September 2016, and there was no record of McKKR’s Pty Ltd seeking review of this decision. The applicant conceded that she had never been the subject of a nomination by the Commonwealth. Furthermore, regulation 2.72I was repealed on 19 November 2016, the same date the subclass 402 visa was abolished and replaced by the subclass 407 visa. Consequently, the Tribunal concluded that the applicant was not the subject of an approved nomination that satisfied the relevant clauses, and the subclass 402 visa class was closed to new applications from that date.

The Tribunal affirmed the decisions not to grant the subclass 402 visas to the applicant and her family members, as they did not meet the primary or secondary visa criteria.