Muza (Migration)

[2024] AATA 1629

Muza (Migration) [2024] AATA 1629 (16 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Misheck Muza

CASE NUMBER:  2217171

HOME AFFAIRS REFERENCE(S):          BCC2020/2452780

MEMBER:C. Packer

DATE:16 April 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 16 April 2024 at 4.37pm

CATCHWORDS
MIGRATION – Training (Subclass 407) visa – Subclass 407 – nominator did not meet the requirements for approval of the nomination of the program of occupational training – occupational training program – decision under review affirmed  

LEGISLATION 
Migration Act 1958, ss 65, 140GB, 359
Migration Regulations 1994, r 2.72

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 Home Affairs on 7 November 2022 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 12 October 2022. The delegate refused to grant the visa on the basis that there was no approved nomination of the program of occupational training.

3. The applicant appeared before the Tribunal on 16 April 2024 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case concerns the nomination of the program of occupational training.

6. On 14 March 2024 the Tribunal wrote to the applicant inviting the applicant to provide comments or response on information that addressed the requirements for the Training (class GF) Training (subclass 407) visa. The letter stated in part:

   The particulars of the information are:

   On 13 March 2024 in Tribunal case 2104387 the Tribunal found the nominator, For
   You Incorporated, did not meet the requirements for approval of the nomination of the
   program of occupational training.

   This information is relevant to the review because clause 407.214(b) requires:

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

   As the nomination of the program of occupational training has not been approved, you
   would not satisfy clause 407.214(b).

   If we rely on this information in making our decision, we may affirm the decision made
   by a delegate of the Minister for Home Affairs to refuse to grant you a Training (Class GF) (subclass 407) visa.

7. The applicant responded on 27 March 2024. The applicant submitted the Tribunal had been biased in deciding that the nominator, For You Incorporated, did not meet the requirements for approval of the nomination of the program of occupational training. The applicant also requested further time to respond. On 28 March 2024 the Tribunal advised that ‘the Tribunal will not grant further time to respond to the s 359A letter as you have already responded’.

8. A hearing was scheduled for 16 April 2024. The applicant requested a postponement as he had a dentist appointment at 9am. The Tribunal noted the applicant’s concerns and advised him that “If you are medically unfit or unable to attend the video-hearing at 12pm on 16 April 2024 due to your other appointment running over the scheduled time, you should let the Tribunal know as soon as possible on that day”.

9. At hearing on 16 April 2024 the Tribunal discussed, amongst other things:

   ·The Tribunal had not been biased in affirming the nomination refusal review. The Tribunal had found that the nomination did not satisfy legal requirements.

   ·The nomination had to meet the legal requirements at the time of decision, and so the proposed future training of the nominee had to be considered.

   ·Another sponsor and new nomination would not meet the legal requirements for this visa application. Accordingly, the Tribunal decided not to delay the hearing in order for him to seek a new sponsor.

   ·Whilst the applicant had attended a dental appointment at 9am, the Tribunal assessed that at the video hearing he appeared to understand what was being said and was comprehensively answering questions and giving evidence.

   ·The Tribunal’s text messages about the upcoming hearing is a standard Tribunal procedure, followed in all cases.

10. At hearing the applicant stated he had a headache. The Tribunal assessed that during the hearing this did not prevent or hinder the applicant from understanding the proceedings and giving evidence.

11. At hearing the Tribunal discussed that this review could not succeed as there was no approved nomination by For You Incorporated. The applicant discussed his completed qualifications and training and how he was exploring other options to stay.

    Conclusion

12. On 13 March 2024 in Tribunal case 2104387 the Tribunal found the nominator, For You Incorporated, did not meet the requirements for approval of the nomination of the program of occupational training. As the nomination of the program of occupational training has not been approved, the applicant does not satisfy clause 407.214(b). The Tribunal finds that the applicant does not meet the requirements for the Training (class GF) Training (subclass 407) visa.

    DECISION

13. The Tribunal affirms the decision not to grant the applicant a Training (class GF) Training (subclass 407) visa.

    C. Packer
    Member