Perazzolo (Migration)

[2021] AATA 4858

Perazzolo (Migration) [2021] AATA 4858 (10 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Giampietro Perazzolo
Miss Desy Zanellato

CASE NUMBER:  1928087

HOME AFFAIRS REFERENCE(S):          BCC2019/3684574

MEMBER:Antonio Dronjic

DATE:10 November 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 10 November 2021 at 10:48am

CATCHWORDS
MIGRATION – Training (Subclass 407) visa – Subclass 407 – first named applicant was not the subject of an approved nomination – nomination has not been approved – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140GB, 359, 363
Migration Regulations 1994, rr 2.72, 2.75, Schedule 2, cls 407.214, 407.311

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

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 19 September 2019 to refuse to grant the visa applicants a Training (Class GF) Subclass 407 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visa on 25 July 2019. The delegate refused to grant the visas on the basis that cl.407.214 (b) was not satisfied because the first named applicant was not the subject of an approved nomination. The delegate also refused the visa application of the second named applicant Miss Desy Zanellato as she could not satisfy the requirements of cl 407.311.

3. The applicants applied for review of the primary decision on 4 October 2019 and provided a copy of the Department’s decision.   

4. On 26 October 2021, the Tribunal wrote to the applicants inviting comments on or response to the information under section 359A. The s. 359A letter sought the applicants’ comments on or response to the following information:

   ·     Your visa application was refused by the Department on 19 September 2019, because the nomination mentioned in cl.407.214 (b) has not been approved.

   ·     The decision not to approve the nomination by Italian Enterprises Pty Ltd was made by the Department on 20 August 2019.

   ·     Italian Enterprises Pty Ltd applied for review of this decision at this Tribunal on 6 September 2019.

   ·     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.

   This information is relevant to the second named applicant because cl.407.311 which prescribes that the secondary applicants meet the requirement of this subclause if the applicants are members of the family unit (the primary applicant) of a person who holds a Subclass 402 or Subclass 407 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

   Accordingly, if the first named applicant is not a holder of a subclass 407 visa, the secondary applicants will not be able to meet cl.407.311.

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

   …

5. The invitation was sent to the applicants’ 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 9 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 26 October 2021. The Tribunal further informed the applicants that they will lose any entitlement they might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments.

6. The applicants have not provided comments on or response to the information contained in the Tribunal letter of 26 October 2021.

7. The Tribunal considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicants additional time in which to provide comments on or response to the information contained in the Tribunal letter of 26 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 applicants’ comments on or response to the information contained in the Tribunal’s s359A letter are likely to be forthcoming, whether the applicants had a fair opportunity to provide comments on or response to the information and the significance of the information to the applicants.

10. In this case the Tribunal wrote to the applicants under subsection 359A of the Act inviting them to provide comments and/or or response to the Tribunal letter of 26 October 2021. They have failed to do so.

11. The Tribunal has had regard to the fact that the visa applications were refused by the Department on 19 September 2019, because the first named 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 applicants submitted a copy of the primary decision record with the review applications. The applicants were aware of the reasons for the delegate’s’ decision for more than 24 months.

12. The Tribunal note that, if the applicants are not granted a Training (Class GF) Subclass 407 visa, they may be required to depart Australia. There is nothing to prevent the applicants from re-applying for a temporary visa once the first named 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 applicants have had sufficient time in which to address the central issues arising in the applications for review and a fair opportunity to provide their 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 4 October 2019.

15. For the following reasons, the Tribunal has concluded that the decisions 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 Giampietro Perazzolo was refused by the Department on 20 August 2019. Italian Enterprises Pty Ltd applied for review of this decision at this Tribunal on 6 September 2019. 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 Italian Enterprises Pty Ltd to which Mr Perazzolo’s Subclass 407 visa application relates has not been approved

20. . It follows that he does not meet the criteria in cl.407.214(b) of Schedule 2 to the Regulations. Therefore, cl.401.214 of Schedule 2 to the Regulations is not met.

21. As Mr Perazzolo does not satisfy the primary criteria for grant of a Subclass 407 visa, the second named applicant cannot satisfy the secondary criteria for the grant of the visa.  There is no evidence before the Tribunal to indicate that Miss Zanellato meets the primary requirements for grant of the visa. 

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

    DECISION

23. The Tribunal affirms the decisions not to grant the visa applicants a Training Subclass 407 (Class GF) visas.

    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.