Manipol (Migration)

[2017] AATA 2478

Manipol (Migration) [2017] AATA 2478 (21 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rolly Tolentino Manipol
Mrs Maria Cecilia Manipol

CASE NUMBER:  1700902

DIBP REFERENCE(S):  BCC2016/2474566 CLF2017/11471

MEMBER:Karen Synon

DATE:21 November 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Training and Research (Class GC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 402 (Training and Research) visa:

·cl.402.221 of Schedule 2 to the Regulations.

Statement made on 21 November 2017 at 1:07pm

CATCHWORDS

Migration – Training and Research (Class GC) – Subclass 402 – Occupational Trainee stream – Nomination approved

LEGISLATION

Migration Act 1958, s 140GB, 359A, 360
Migration Regulations 1994, cl.402.221, r 1.13, r2.72

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 11 January 2017 to refuse to grant the visa applicant a GC – Training and Research (Class GC) Subclass 402 visa under s.65 of the Migration Act 1958 (the Act).

2. 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.

3. The visa applicant applied for the visa on 22 July 2016.  In the present case, 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.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl.402.221 of Schedule 2 to the Regulations because the nomination made by Australian Steel Pty Ltd was refused 2 November 2016.

5. The applicants appeared before the Tribunal on 20 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Charles Capocasale, the owner and director of Australian Steel Pty Ltd who nominated the applicant.  This was conducted as a combined hearing with the related nomination.  The Tribunal hearing was conducted with the occasional assistance of an interpreter in the Filipino (Tagalog) and English languages.

6. The applicants were represented in relation to the review by their registered migration agent who was present throughout the hearing.

7. For the following reasons, the Tribunal has concluded that the decision under review should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is cl.402.221.

9. 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.

10. 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.

11. 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.

12. Additionally, there must be no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information. 'Adverse information' and 'associated with' are defined in r.1.13A and 1.13B of the Regulations. In this respect the Tribunal notes that department records indicate that an allegation as to possible sponsor/employer breaches was made in January 2016 however, as further examination of department records available to the Tribunal do not suggest that any investigations or sanctions followed this allegation, the Tribunal considers it reasonable to disregard the information.

13. The Department refused to grant the visa as a consequence of its decision to refuse to approve a nomination by an occupational trainee sponsor, Australian Steel Pty Ltd.

14. On 21 November the Tribunal made a decision to set aside the department’s nomination refusal and substituted a decision that the nomination, in respect of the applicant, is approved.  On this basis the Tribunal finds that:

    ·The applicant is identified in a nomination by an occupational trainee sponsor;

    ·The nomination meets the criteria in r.2.72I of the Regulations (hence the approval);

    ·The approval has not ceased; and

    ·It is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator.

15. The applicant therefore meets the requirements of cl.402.221 of Schedule 2 to the Regulations.

    DECISION

16. The Tribunal remits  the application for a Training and Research (Class GC) visa for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 402 (Training and Research) visa:

    · cl.402.221 of Schedule 2 to the Regulations.

    Karen Synon
    Member