Monia (Migration)

[2023] AATA 1503

Monia (Migration) [2023] AATA 1503 (24 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Monia
Mr Sharanjeet Singh

REPRESENTATIVE:  Mr Dildeep Singh (MARN: 1281067)

CASE NUMBER:  1836593

HOME AFFAIRS REFERENCE(S):          BCC2018/3388944

MEMBER:Alison Mercer

DATE:24 May 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Class GF (Training) subclass 407 visas.

Statement made on 24 May 2023 at 10:51am

CATCHWORDS

MIGRATION – Training (Class GF) visa – Subclass 407 (Training) – subject of approved training nomination – related nomination application refused and application for review withdrawn – applicant not aware of withdrawal – nominating company changed business name and ABN and applicant has been working for it since – company now a standard business sponsor preparing to apply for nomination of temporary work position – applicant prevented from making further applications in Australia and needs to lodge temporary working visa application offshore – member of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 48, 65

Migration Regulations 1994 (Cth), Schedule 2, cls 407.214(b), 407.311

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 applicants Training (Class GF) subclass 407 visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visa on 7 September 2018. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not meet cl.407.214, which required that she was the subject of an approved nomination by an approved training sponsor. The delegate noted that the Department had rejected the nomination of the applicant made by A Orlando (Victoria) Pty Ltd as trustee for The A Orlando (Victoria) Unit Trust on 11 October 2018. The delegate further noted that the sponsor lodged a new nomination on 30 October 2018, but this too was refused by the Department on 22 November 2018. As the applicant did not meet cl.407.214, she could not be granted a subclass 407 visa. The delegate also refused to grant the second named applicant (the applicant’s spouse) a subclass 407 visa as he did not meet the secondary visa criteria requiring him to be a member of the family unit of a person who held a subclass 407 visa, and there was no evidence that he met the primary visa criteria in his own right.

3. The Tribunal received a review application from the applicants on 13 December 2018. It was accompanied by an authority by which the applicants appointed a registered migration agent, Mr Dildeep Singh, as their representative and authorised recipient for correspondence.

4. On 14 March 2023, the Tribunal wrote to the applicants via their agent to invite them to attend a telephone hearing on 6 April 2023.

5. On 17 March 2023, the Tribunal wrote again to the applicants via their agent to invite them, pursuant to s.359A of the Act, to comment on or respond to information held by the Tribunal that was potentially adverse to their case. The Tribunal advised them that the particulars of the information were:

   ·at the time the applicant made her subclass 407 visa application on 7 September 2018, she was nominated by her proposed employer, A Orlando (Victoria) Pty Ltd as trustee for The A Orlando (Victoria) Unit Trust (‘Orlando’);

   ·the second named applicant was included in the visa application as a member of her family unit;

   ·the delegate also refused to grant a subclass 407 visa to the second named applicant as he did not meet the secondary visa criteria requiring him to be a member of the family unit of a person who held a subclass 407 visa, and there was no evidence that he met the primary criteria in his own right;

   ·they applied to the Tribunal on 13 December 2018 for review of the Department’s decision to reject their subclass 407 visa applications;

   ·the Tribunal’s records indicated that Orlando also lodged an application for review of the decision to refuse its nomination of the applicant;

   ·the Tribunal made a decision on 1 October 2018 that it had no jurisdiction to review the nomination refusal decision as Orlando had withdrawn its review application;

   ·moreover, the Tribunal (differently constituted) made a decision on 9 August 2021 that it had no jurisdiction to review a nomination refusal relating to Orlando as Orlando had been deregistered as a company on 30 July 2020; and

   ·accordingly, there is currently no approved nomination of the applicant by Orlando, and the decision to refuse the nomination is not under review by the Tribunal.

6. The Tribunal advised the applicants that the information was relevant to the review because, subject to their comments or response, it indicated that:

   ·the applicant was not the subject of an approved nomination that has not ceased, as required by cl.407.214(b) and (c) and this would be the reason (or part of the reason) for the Tribunal to affirm the decision under review, as it was a requirement that the primary applicant met cl.407.214(b) and (c) the time of decision;

   ·if the Tribunal found this to be the case, then the second named applicant would not meet the secondary criteria in cl.407.311 requiring him to be a member of the family unit of a person who held a subclass 407 visa and there was no evidence that he met the primary visa criteria in his own right. The Tribunal advised that this would be the reason (or part of the reason) for the Tribunal to affirm the decisions under review in relation to him and

   ·there was no evidence that they met the criteria in the other parts of the subclass 407 visa.

7. The applicants were requested to respond or provide comments by 31 March 2023, and advised that if they failed to do so (or failed to ask for an extension of time to do so) by that date, they would lose their entitlement to a hearing.

8. On 23 March 2023, the applicants and their agent indicated that they wished to attend the hearing.

9. On 31 March 2023, the applicants and their agent provided the following response to the Tribunal’s s.359A letter:

   …

   1. The review applicant lodged a 407-visa application on 07 Sept 2018 which was refused by the department on 22 Nov 2018 on the basis that the applicant did not satisfy clause 407.214 in Schedule 2 of the Migration Regulations.

   2. The visa applicant lodged a review application with AAT on 13 Dec 2018.

   3. The visa applicant’s nominator (A Orlando (Victoria) Pty Ltd Atf The A Orlando (Victoria) Unit Trust) also lodged a review application. (Case Number: 1916820)

   4. The nominator withdrawn review application (Case Number: 1916820) on 13 Dec 2018, however the review applicant was not aware about the withdrawal of the nomination review application.

   5. The nominator changed the business name and ABN number (Previously known as A Orlando (Victoria) Pty Ltd Atf The A Orlando (Victoria) Unit Trust) and new name is J.I.S.P. Pty Ltd T/A Heading Out Hair & Beauty Fitzroy and ABN 47633328015 and the review applicant has been continuously working with the same employer since 2018.

   6. Ms. Monia is a skilled worker (Hairdresser) and have more than 4 years of experience with same employer who sponsored her for 407.

   7. She has been assisting an Australian business even though in critical COVID time.

   8. The review applicant is seeking to apply for a Skilled visa as her skills and expertise are in high demand in Australia.

   9. Ms Monia wishes to lodge another application in Australia.

   10. There are various vacancies in the region and employers are searching for skilled workers with knowledge and expertise in the industry.

   Request

   I request the tribunal to consider the situation of the review applicant and consider her review application further so she can get a chance to lodge another visa application.

   …

10. The first named applicant appeared before the Tribunal by telephone on 6 April 2023 to give evidence and present arguments. The Tribunal also received oral submissions from the applicant’s agent, who participated by telephone also.

11. The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments

12. The applicant told the Tribunal that her present employer (the same employer who nominated her for the subclass 407 visa for a training position) was willing to nominate her for a subclass 482 (Temporary Work) visa. The agent told the Tribunal that the employer had been approved as a Standard Business Sponsor (SBS) and was preparing to lodge its nomination, which he expected to be done in the next 2 weeks. In response to the Tribunal’s query, he advised that the Department’s estimated processing time for a subclass 482 visa nomination was 6 to 12 weeks. He told the Tribunal that the applicants would then need to go offshore to lodge their subclass 482 visas as they were prevented by s.48 of the Act from making further visa applications in Australia. He asked the Tribunal to defer its decision on the subclass 407 visa application for as long as possible.

13. The Tribunal indicated that its current workload meant that it was unlikely to make a decision for about 6 weeks, but that it would be doing so before 12 weeks.

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

    CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant meets cl.407.214, which provides as follows:

    …

    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 2.72A; 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.

    …

16. It is not disputed that the applicant’s sponsor, Orlando (now operating under a new ABN and company, being J I S P Pty Ltd, trading as Heading Out Hair and Beauty Fitzroy), is not a Commonwealth agency, and thus the applicant must meet cl.407.214. It is also not disputed that at the time of the delegate’s decision, the applicant did not have an approved nomination of a program of occupational training by her sponsor, and thus did not meet cl.407.214(b). This was because the Department had refused to approve 2 nominations made by the sponsor on 11 October 2018 and 22 November 2018. There is no evidence before the Tribunal of any other approved nomination of the application.

17. Accordingly, the Tribunal must find that she does not meet cl.407.214(b) and cannot meet cl.407.214 as a whole. As a result, it must affirm the decision not to grant her a subclass 407 visa as there is no evidence before the Tribunal that she can meet the requirements of any other part.

18. The Tribunal must also affirm the decision not to grant a subclass 407 visa to the second named applicant as there is no evidence that he meets the secondary visa criteria in cl.407.311 requiring him to be a member of the family unit of a person who holds a subclass 407 visa, and there is no evidence that he meets the primary visa criteria in his own right.

    DECISION

19. The Tribunal affirms the decisions not to grant the applicants Class GF (Training) subclass 407 visas.

    Alison Mercer
    Member