SHE (Migration)

[2024] AATA 567

SHE (Migration) [2024] AATA 567 (22 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Chia-chen SHE
Mr Yi-hsueh YEH
Mr Ting-Hsuan YEH

REPRESENTATIVE:  Ms Rong ZHANG (MARN: 0426182)

CASE NUMBER:  2001352

HOME AFFAIRS REFERENCE(S):          BCC2019/5175021

MEMBER:Alan McMurran

DATE:22 March 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Subclass 407 (Training) visas.

Statement made on 22 March 2024 at 3:06pm

CATCHWORDS
MIGRATION – Training (Class GF) visa – Subclass 407 (Training) – subject of an approved nomination – failure to appear before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB, 360, 362B, 363
Migration Regulations 1994 (Cth), r 2.72; Schedule 2, cls 407.214, 407.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 25 January 2020 for review of a decision made by a delegate of the Minister for Home Affairs on 9 January 2020 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). This is a combined application under Part 5 of the Act and the Migration Regulations 1994 (the Regulations).

2. The visa applicant, Mrs Chia-chen SHE, a national of the Republic of China (Taiwan), applied for the visa on 15 October 2019 (“the primary applicant/applicant”).

3. The second and third-named applicants, Mr Yi-hsueh YEH and Mr Ting-Hsuan YEH are respectively the primary applicant’s child and partner and members of her family unit (“the secondary applicants”).

4. The delegate refused to grant the visa on the basis that the primary applicant did not have an approved sponsor. This was because on 20 November 2019, the applicant’s sponsor, Absolute Personnel Pty Ltd (“ the sponsor”) had its sponsorship application refused.

5. On 20 November 2019, the applicant was informed that the nomination for a program of occupational training had been refused and was invited to comment in response. The applicant did not respond with information that the applicant had been identified in any other approved nomination and the delegate found that the applicant did not meet cl 407.214 of Schedule 2 to the Regulations.

6. On 19 February 2024, the applicant was invited to appear before the Tribunal to give evidence and present arguments. The hearing was scheduled for an appearance by telephone on 22 March 2024 at 9.30am. The applicant did not respond to the invitation.

7. On 22 March 2024, the applicant was contacted by telephone by a Tribunal hearing officer. An interpreter was also available to assist the applicant in the Mandarin language for the hearing. The Tribunal Member was also present. The applicant did not respond to the attempted telephone contact on her provided mobile.

   No appearance

8. The applicants were represented in relation to the review, and the representative was also contacted by telephone at the hearing time, not having responded beforehand to the Tribunal’s invitation to appear.

9. The representative responded to the call, apologised, and informed the Tribunal that the applicant would not be appearing. The representative said she would confirm her instructions by email.

10. Later that morning on 22 March 2024, the representative sent an email to advise that: “I have just received a phone call from AAT.I wrote this email to confirm that Ms. Chia-Chen She has decided to not to response the hearing invitation and not to attend the hearing today via the WeChat messages to me on 26th Feb. 2024.”

    Failure to appear

11. Section 360 provides that the Tribunal must invite the applicants to a hearing. Section 362B provides that where the applicant does not appear on the day on which, or at the time and place at which the applicant is scheduled to appear, the Tribunal may make a decision on the review or dismiss the proceedings. The Tribunal is then required to notify the applicant of a decision on its review.[1]

    [1] Section 368A

12. Section 363 further provides that the Tribunal has a discretion also to adjourn the review from time to time. In this instance, the applicant has not sought an adjournment to provide information or by way of explanation for her non-attendance. The Tribunal is satisfied that in the absence of any further information or request to do so, this is not a case where the decision should be delayed by providing an adjournment. The Tribunal is required to pursue its objective to act in a fashion which is  fair, just, economical, informal and quick.[2]  

    [2] AAT Act s 2A

13. The Tribunal has therefore determined to finalise the review on the available information.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant is subject to an approved nomination under s140GB of the Act on the basis of the criteria in regulation 2.72A.

16. Regulation 407.214 provides:  

    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.

17. On 20 November 2019, the delegate declined to approve the nomination application[3] by the sponsor.

    [3] BCC2019/5169125

18. On 9 December 2019, the nominator/sponsor lodged an application for review[4] with the Tribunal. On 13 July 2023, the Tribunal sent a letter to the sponsor inviting further information and requesting a response. The sponsor replied on 17 July 2023, informing the Tribunal that the sponsor wished to withdraw the application for review and without providing any further information or any submissions.

    [4] T case number 1934833

19. On 8 September 2023, the Tribunal made a decision that the review sought by the sponsor was withdrawn. The Tribunal is not aware of any other sponsorship application relating to the applicants.

20. The applicants have engaged the same representative in this review as the representative acting for the sponsor. The applicants are aware of the outcome that the sponsor has not continued with a review. The applicants have not provided any information to this tribunal to support the visa applications.

21. The Tribunal finds on the available information that there is no approved nomination under s 140GB of the Act for the primary applicant, by the sponsor or any other sponsor, for a Subclass 407 (Training) visa. The Tribunal further finds that there is no outstanding review application by the sponsor and which review has been concluded.

22. As the requirement for an approved nomination is mandatory, and in respect of which there is no discretion, the application for the visas cannot succeed without an approved sponsorship nomination.

23. The Tribunal finds for these reasons that the requirements of cl 407.214 are not met.

    Secondary applicants

24. Cl 407.311 provides that the secondary applicants are members of the family unit of a person (the primary applicant) who holds a Subclass 402 (Training and Research visa), or a Subclass 407 (Training) visa. 

25. As the primary applicant is not the holder of any visa listed in sub-clause 407.311(a) or (b) the secondary applicants do not meet the criteria for the visa and cl 407.311 is not met.

    Conclusion

26. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

    DECISION

27. The Tribunal affirms the decision not to grant the applicants Subclass 407 (Training) visas.

    Alan McMurran
    Member