Serly (Migration)

[2023] AATA 783

Serly (Migration) [2023] AATA 783 (31 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sambara Serly

REPRESENTATIVE:  Ms Rosaleen Chit (MARN: 1795922)

CASE NUMBER:  1920755

HOME AFFAIRS REFERENCE(S):          BCC2019/2769955

MEMBER:C. Packer

DATE:31 March 2023

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 31 March 2023 at 3:29pm

CATCHWORDS
MIGRATION – Training (Class GK) visa – Subclass 407 (Training) – related nomination of training program refused and affirmed on review – no response to tribunal’s invitation to comment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 407.214

CASE
Hasran v MIAC [2010] FCAFC 40

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 24 July 2019 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 29 May 2019. The delegate refused to grant the visa on the basis that there was no approved nomination of a program of occupational training in relation to the applicant under paragraph 140GB(1) (b) of the Act, and so cl.407.214 was not met.

3.    On 16 March 2023 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the applicant to provide comments or response on information. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response was not provided in writing by 30 March 2023 the Tribunal may make a decision on the review without taking further steps to obtain the comments or response and the applicant would lose any entitlement, they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

4.    The review applicant has not commented or responded within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

5.    The Tribunal therefore cancelled the hearing scheduled for 5 April 2023.

6.    The Tribunal has decided to proceed to decision without taking further steps to obtain comments or a response.

7.    For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the Training (class GF) Training (subclass 407) visa.

CONSIDERATION OF CLAIMS AND EVIDENCE

8.    On 16 March 2023 the Tribunal wrote to the applicant inviting them 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 29 May 2019 you were nominated for a subclass 407 visa by Ghella Pty
Ltd. This nomination was refused by a delegate of the Minister on 18 June
2019.
 On 4 July 2019 the nominator applied for a review of the delegate’s nomination
refusal decision (case number 1917875).
 However, on 16 January 2023 the Tribunal affirmed the decision not to approve
the nomination.

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 must affirm the decision made to refuse to grant you a subclass 407 visa.

9.    In sum, the Tribunal finds there is no approved nomination of a program of occupational training in relation to the applicant under paragraph 140GB(1)(b) of the Act, and so cl.407.214 is not met. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

DECISION

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

C. Packer
Member