Parker (Migration)

[2023] AATA 3016

Parker (Migration) [2023] AATA 3016 (14 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Kirsty Victoria Parker

REPRESENTATIVE:  Mr Grant Colbron (MARN: 1276188)

CASE NUMBER:  1934994

HOME AFFAIRS REFERENCE(S):          BCC2019/4787589

MEMBER:Katie Malyon

DATE:14 September 2023

PLACE OF DECISION:  Sydney

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

Statement made on 14 September 2023 at 2:31 pm

CATCHWORDS

MIGRATION – Training Visa (Class GF) visa – Subclass 407 (Training) – occupation of Customer Service Manager – no approved nominated program of occupational training – applicant departed Australia – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 140, 363
Migration Regulations 1994, rr 1.13, 2.72, 2.75; Schedule 2, cl 407.214

CASES

Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

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 28 November 2019 to refuse to grant the applicant a Training (Class GF) Subclass 407 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, British national Kirsty Victoria Parker, applied for the visa on 24 September 2019.  It was proposed that the visa would enable Ms Parker to undertake training as a Customer Service Manager ANZSCO 149212 with her sponsor Baralaba Supermarket Pty Ltd (the Company).

3. The delegate refused to grant the visa on the basis that the Company’s nomination was refused on 23 October 2019.  Therefore, the delegate was not satisfied that Ms Parker met cl 407.214 of Schedule 2 to the Regulations. 

   The Tribunal’s s 359A letter

4. On 28 August 2023 the Tribunal wrote to Ms Parker under s 359A of the Act inviting her to comment on, or respond to, information that the Tribunal considers would, subject to her comments or response, be the reason, or part of the reason, for affirming the decision under review. The particulars of this information are:

   ·at the time you made your Subclass 407 Training visa application on 24 September 2019, you declared in your visa application that you were nominated by the Company;

   ·the Company nominated a program of occupational training for you in respect of the occupation of Customer Service Manager.  However, the Company’s nomination was refused by the Department on 23 October 2019;

   ·as a consequence, the delegate refused your Subclass 407 visa application on 28 November 2019 on the basis that the Company’s nomination was not approved as you did not meet cl 402.214(a) of Schedule 2 to the Regulations;

   ·on 17 September 2019, the Company sought review of the delegate’s refusal of its nomination in the Tribunal and you also sought review of the delegate’s refusal of your related Subclass 407 visa application;

   ·the Tribunal affirmed the decision not to approve the Company’s nomination on 17 January 2023; and,

   ·accordingly, there is currently no approved nomination by the Company in relation to you.

5. The Tribunal’s s 359A letter explained that this information is relevant to the review because cl 407.214 of Schedule 2 to the Regulations requires that the position specified in the visa application is the subject of an approved nomination and that nomination has not ceased. Further, the Tribunal stated that if it relies on this information in making a decision, it may find that the position specified in the application is not the subject of an approved nomination which means that Ms Parker does not satisfy cl 407.214 of the Regulations and that the decision under review must be affirmed.

6. In its s 359A letter, the Tribunal requested that Ms Parker provide her comments or response to this adverse information by 11 September 2023 and that, if she is unable to provide a comment or response by then, she would need to request an extension of time in which to provide the information. Further, the Tribunal stated that, if her comments or response is not received with the period allowed or extended, it may make a decision on the review without taking further steps to obtain the information and that Ms Parker would lose any entitlement she has under the Act to appear before the Tribunal to give evidence and present arguments.

7. The Tribunal is satisfied that its 359A letter was properly dispatched to the email address of Ms Paker’s representative.  On 3 September 2023, the representative emailed the Tirbunal to inform it that he had forwarded the Tribunal’s letter to Ms Parker but he has not received a reply from her.  He confirmed that he was aware Ms Parker has departed Australia and that he has not spoken with her in almost 2 years.

8. No response has been received from Ms Parker in response to the Tribunal’s s 359A letter. She has not commented on the adverse information set out in the Tribunal’s letter. Further, Ms Parker has not sought additional time in which to do so.

9. In these circumstances, s 359C of the Act applies and, pursuant to s 360(3) of the Act, Ms Parker is not entitled to appear before the Tribunal. If a review applicant has no entitlement to a hearing, the effect of s 363A of the Act is that the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

10. Although Ms Parker has not requested this, the Tribunal has considered whether it would be appropriate to adjourn the review under s 363(1)(b) of the Act to allow Ms Parker additional time in which to provide the evidence to support her review application.  In this regard, the Tribunal has considered whether, in the circumstances of this case and having regard to the recent COVID-19 pandemic, evidence that Ms Parker meets the relevant requirements of

    
    

    cl 407.214 is likely to be forthcoming, whether she has had a fair opportunity to provide the information already, the significance of the information to Ms Parker and the representative’s advice - which has been confirmed by the Tribunal’s review of the Department’s movement records - that she has left Australia.  The records confirm that she left Australia on 27 February 2020 and has not returned since.  The Tribunal has also 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.

    [1] [2002] FCA 617.

    [2] [2012] FMCA 28.

11. In the circumstances of this case, the Tribunal considers that Ms Parker has had sufficient time to provide the requested information or seek an extension of time in which to do so. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with s 359C of the Act.

12. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether Ms Parker is the subject of an approved nomination for a Subclass 407 Training visa made by the Company, or another approved temporary activities sponsor, for a program of occupational training on the basis of meeting the criteria in reg 2.72A of the Regulations.

    Nomination of a position

14. Clause 407.214 of Schedule 2 to the Regulations as applicable in this case is set out in full in the Attachment to this decision.  Essentially, it requires that:

    ·an approved temporary activities sponsor has nominated a program of occupational training in relation to the visa applicant;

    ·the nomination has been approved and has not ceased (emphasis added); and,

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person who has an ‘association with’ that person (within the meaning of those terms in reg 1.13A and reg 1.13B of the Regulation); or it is reasonable to disregard any such information

15. The Company’s nomination application in relation to the proposed occupational training to be offered to Ms Parker for the position of Customer Service Manager was refused by the Department on 23 October 2019.  Although the Company applied to the Tribunal for review of the Department’s decision to refuse its nomination, the Tribunal affirmed the decision to refuse the nomination on 17 January 2023.

16. There is no evidence before the Tribunal that any other approved temporary activities sponsor has had a nomination approved under reg 2.72A of the Regulations in relation to occupation training for Ms Parker.

17. Based on available evidence, the Tribunal finds that Ms Parker does not meet the requirements in cl 407.214 of Schedule 2 to the Regulations.

18. Since the requirements that must be met by a person seeking a Subclass 407 visa have not been met, the decision under review must be affirmed.

    DECISION

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

    Katie Malyon

    
    Member

    ATTACHMENT - Extract from the Migration Regulations 1994

    Schedule 2
    …

    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.

    oOOo