Manipol (Migration)

The Administrative Appeals Tribunal considered a dispute concerning an application for a Subclass 402 (Training and Research) visa, specifically within the Occupational Trainee stream. The applicant sought review of the Department's decision to refuse to approve a nomination by an occupational trainee sponsor, Australian Steel Pty Ltd. The Tribunal, constituted by Member Karen Synon, was tasked with determining whether the applicant met the relevant visa criteria.

The central legal issue before the Tribunal was whether the applicant satisfied clause 402.221 of Schedule 2 to the Migration Regulations 1994. This clause outlines the requirements for applicants in the Occupational Trainee stream, differentiating between training provided by the Commonwealth and that provided by other sponsors. For training not provided by the Commonwealth, the applicant must be identified in an approved nomination that has not ceased, and there must be no adverse information known to the Department about the nominator or associated persons, or any such information must be reasonable to disregard.

The Tribunal reasoned that the applicant was indeed identified in a nomination by an occupational trainee sponsor, and this nomination met the criteria specified in regulation 2.72I and had not ceased. Crucially, the Tribunal considered an allegation of possible sponsor/employer breaches made in January 2016. However, as departmental records indicated no subsequent investigations or sanctions, the Tribunal concluded it was reasonable to disregard this information. Consequently, the Tribunal found that the applicant met all the requirements of clause 402.221.

The Tribunal set aside the Department's decision to refuse the nomination and substituted a decision approving the nomination in respect of the applicant. The application for the Subclass 402 visa was remitted for reconsideration with the direction that the applicant meets the criteria under clause 402.221.