SHEN (Migration)

[2021] AATA 4685

SHEN (Migration) [2021] AATA 4685 (22 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jiawei SHEN

CASE NUMBER:  1821663

HOME AFFAIRS REFERENCE(S):          BCC2018/1922139 CLF2018/190789

MEMBER:Alan McMurran

DATE:22 October 2021

PLACE OF DECISION:  Sydney

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

Statement made on 22 October 2021 at 2:34pm

CATCHWORDS
MIGRATION – Training (Subclass 407) visa – Subclass 407 – Applicant has left Australia – sponsor is not a Commonwealth agency – sponsor’s withdrawal of application for review – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140GB
Migration Regulations 1994, rr 2.72, 2.75, Schedule 2, cl 407.214

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 25 July 2018 to refuse to grant the visa applicant a Training (Subclass 407) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 2 May 2018. The delegate refused to grant the visa on the basis that the delegate found that the applicant was not named in a nominated, approved program of occupational training.

3. The sponsor had sought to nominate the applicant for a Training (Subclass 407) visa. The sponsor’s application had been refused by the Department on 14 June 2018.

4. Both the applicant and the sponsor were represented by the same registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the criteria for approval of the visa.

7. Subclause 407.214 of Schedule 2 to the regulations relevantly provides that:

   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:

   a.   there is no adverse information known to Immigration about the sponsor or a person associated with the sponsor; or

   b.   it is reasonable to disregard any adverse information known to Immigration about the sponsor or a person associated with the sponsor.

   Background

8. On 14 September 2021, the Tribunal sent a letter to the applicant, inviting the applicant to attend a video hearing on 1 October 2021, in accordance with the Tribunal’s pandemic protocol and current Practice Direction. The hearing was combined with a review of the application[1] by the sponsor, Paul Moraitis (Investments) Pty Ltd ATF The Paul Moraitis Family Trust & Stephen Moraitis Family Trust.

   [1] T case 1819205

9. The applicant did not respond to the hearing invitation.

10. On 30 September 2021, the sponsor informed the Tribunal it was withdrawing its application for review.

11. On 1 October 2021, the Tribunal accepted and recorded the sponsor’s withdrawal before the hearing and neither the sponsor nor the applicant appeared.

12. On 6 October 2021, the Tribunal sent a natural justice letter to the applicant with particulars that the nomination was refused by the Department on 14 June 2018, and that the review of that nomination refusal  sought by the sponsor was withdrawn.

13. The Tribunal letter contained the following:

    “This information is relevant to the review because it is a requirement for the grant of the visa that a nomination in relation to you has been approved under s.140GB of the Act on the basis of the criteria in Regulation 2.72A: cl.407.214(b) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

    If we rely on this information in making our decision, we may find that a nomination in relation to you has not been approved. Consequently, you would not meet the requirements of cl.407.214  of Schedule 2 to the regulations and the decision under review would be affirmed.”

14. The applicant was invited to respond by 20 October 2021.

15. On  6 October 2021, the applicant’s migration agent replied to the Tribunal stating: “Applicant has left Australia and has retuned to China. We have been trying to contact him, however his phone is disconnected and he has not replied to our emails”.

    Findings

16. The Tribunal finds on the Department information that the sponsor is not a Commonwealth agency. Department records indicate that the applicant’s Bridging visa Subclass WB020 expired on 16 February 2020 and that the applicant is currently offshore.

17. The Tribunal is satisfied on the available information that there is no nomination by the sponsor for an approved program of occupational training in relation to the applicant under paragraph 140GB(1) (b) of the Act.

18. The Tribunal is satisfied that the applicant does not meet the criteria in subclause 407.214(b) as the nomination by the sponsor has not been approved, and further, there is no current review pending or information before the Tribunal that the applicant is the subject of another nomination or review.

19. For these reasons the application cannot succeed and the Tribunal must affirm the decision under review to refuse the visa.

    DECISION

20. The Tribunal affirms the decision not to grant the applicant Training (Subclass 407)  visa.

    Alan McMurran
    Member