Mcmullan (Migration)

[2021] AATA 4852

Mcmullan (Migration) [2021] AATA 4852 (8 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daniel William Mcmullan

CASE NUMBER:  1836147

HOME AFFAIRS REFERENCE(S):          BCC2018/3392289

MEMBER:Antonio Dronjic

DATE:8 November 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Training (Class GF) Subclass 407 visa.

Statement made on 08 November 2021 at 11:31am

CATCHWORDS
MIGRATION – Training (Subclass 407) visa – Subclass 407 –applicant was not the subject of an approved nomination – nomination has not been approved – Tribunal affirmed the Department’s decision not to approve the nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140GB, 359, 363
Migration Regulations 1994, rr 2.72, 2.75, Schedule 2, cl 407.214

CASE
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Kaur v Minister for Immigration and Border Protection [2014] FCA 915

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 22 November 2018 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 7 September 2018. On 20 August 2019 the delegate refused to grant the visa on the basis that cl.407.214 (b) was not satisfied because the applicant was not the subject of an approved nomination.

3. The applicant applied for review of the primary decision on 10 December 2018 and provided a copy of the Department’s decision.   

4. On 22 October 2021, the Tribunal wrote to the applicant inviting comments on or response to the information under section 359A. The s. 359A letter sought the applicant’s comments on or response to the following information:

   ·Your visa application was refused by the Department on 22 November 2018, because the nomination mentioned in cl.407.214 (b) has not been approved.

   ·The decision not to approve the nomination by BETTER BUILT BRICKLAYING PTY. LTD. AS TRUSTEE FOR FERRIS DUFFY UNIT TRUST was made by the Department on 16 October 2018.

   ·BETTER BUILT BRICKLAYING PTY. LTD. AS TRUSTEE FOR FERRIS DUFFY UNIT TRUST applied for review of this decision at this Tribunal on 2 November 2018.

   ·On 15 October 2021, the Tribunal affirmed the Department’s decision not to approve the nomination.

   This information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse you the grant of a subclass 407 visa. This is because one of the criteria contained within subclass 407, namely clause 407.214(b) requires that the nomination has been approved under section 140GB of the Act on the basis of the criteria in regulation 2.72A.

   You are invited to give comments on or respond to the above information in writing.

   …

5. The invitation was sent to the applicant’s address provided in connection with the review and advised that, if the comments on or response to the information was not provided in writing by 5 November 2021, and no extension of time has been sought or granted, the Tribunal may make a decision on the review without taking further steps to obtain the comments on or response to the information contained in the Tribunal letter of 22 October 2021. The Tribunal further informed the applicant that he will lose any entitlement he might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments.

6. The applicant has not provided comments on or response to the information contained in the Tribunal letter of 22 October 2021.

7. The Tribunal considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide comments on or response to the information contained in the Tribunal letter of 22 October 2021.

8. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

   [1] [2002] FCA 617

   [2] [2012] FMCA 28

   [3] [2013] HCA 18 (8 May 2013)

   [4] [2014] FCAFC 1 (4 February 2014)

   [5] [2014] FCA 915 (28 August 2014)

9. The Tribunal considered whether, in the circumstances of this case, the applicant’s comments on or response to the information contained in the Tribunal’s s359A letter are likely to be forthcoming, whether the applicant had a fair opportunity to provide comments on or response to the information and the significance of the information to the applicant.

10. In this case the Tribunal wrote to the applicant under subsection 359A of the Act inviting him to provide comments and/or or response to the Tribunal letter of 22 October 2021. He has failed to do so.

11. The Tribunal has had regard to the fact that the visa application was refused by the Department on 22 November 2018, because the applicant was unable to meet the cl. 407.214(b) which requires that the nomination has been approved under section 140GB of the Act on the basis of the criteria in reg. 2.72A. The applicant submitted a copy of the primary decision record with the review application. The applicant was aware of the reasons for the delegate’s’ decision for more than 35 months.

12. The Tribunal note that, if the applicant is not granted a Training (Class GF) Subclass 407 visa, he may be required to depart Australia. There is nothing to prevent the applicant from re-applying for a temporary visa once the applicant finds the new employer willing to sponsor and nominate the applicant for the position within their business.

13. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review and a fair opportunity to provide his comments on or response to information contained in the Tribunal letter. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further. 

14. In doing so the Tribunal notes that no substantive submissions or evidence has been provided since the application for review was lodged on 10 December 2018.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the applicant meets the requirements of cl.407.214(b) which requires the nomination has been approved under section 140GB of the Act on the basis of the criteria in regulation 2.72A.

    Nomination of a position

17. Clause 407.214 of Schedule 2 of the Regulation as applicable in this case is set out in full in the Attachment to this decision. Based on the evidence before it, the Tribunal is satisfied that the approved sponsor is not a Commonwealth agency. Accordingly, cl.407.214(b) is applicable.

18. The nomination application in respect of training to be offered to Mr Mcmullan was refused by the Department on 16 October 2018. Better Built Bricklaying Pty. Ltd applied for review of this decision at this Tribunal on 2 November 2018. On 15 October 2021, the Tribunal affirmed the Department’s decision not to approve the nomination.

19. Based on the evidence before it, the Tribunal finds that the nomination application made by Better Built Bricklaying Pty. Ltd to which Mr Mcmullan’s Subclass 407 visa application relates has not been approved. It follows that he does not meet the criteria in cl.407.214(b) of Schedule 2 to the Regulations.

20. Therefore, cl.401.214 of Schedule 2 to the Regulations is not met. It follows that the decision under review to refuse the applicant the visa must be affirmed.

    DECISION

21. The Tribunal affirms the decision not to grant the visa applicant a Training (Class GF) Subclass 407 visa.

    Antonio Dronjic
    Member

    
    

    Attachment – Extract from the Migration Regulations 1994

    ..

    Subclass 407 – Training

    ..

    407.214  If the approved sponsor is not a Commonwealth agency:

    (a) the sponsor has nominated a program of occupational training in relation to the applicant under paragraph 140GB(1)(b) of the Act; and

    (b) the nomination has been approved under section 140GB of the Act on the basis of the criteria in regulation 2.72A; and

    (c) the approval of the nomination has not ceased under regulation 2.75A; and

    (d) either:

    (i) there is no adverse information known to Immigration about the sponsor or a person associated with the sponsor; or

    (ii) it is reasonable to disregard any adverse information known to Immigration about the sponsor or a person associated with the sponsor.