Singal (Migration)

[2023] AATA 3150

Singal (Migration) [2023] AATA 3150 (22 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Astrid Isabella Singal

CASE NUMBER:  1934828

HOME AFFAIRS REFERENCE(S):         BCC2019/4838735

MEMBER:Alison Mercer

DATE:22 September 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 22 September 2023 at 1:27pm

CATCHWORDS

MIGRATION – Training (Class GF) visa – Subclass 407 (Training) – architect – subject of approved training nomination – refusal of related nomination application affirmed in separate review – no response to invitations to comment or provide further information – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3)

Migration Regulations 1994 (Cth), Schedule 2, cl 407.214(b)

CASES

MIAC v Li (2013) 249 CLR 332

Yang v MIAC [2010] FMCA 890

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 applied for the visa on 26 September 2019. The delegate refused to grant the visas on the basis that the applicant did not meet cl.407.214, which required that she was the subject of an approved nomination by an approved training sponsor. The delegate noted that the Department had rejected the nomination of the applicant made by Blight Blight & Blight Pty Ltd on 29 October 2019. 

3. The Tribunal received a review application from the applicant on 28 November 2019. It was accompanied by a copy of the delegate’s decision and various documents relating to the applicant’s Australian architectural qualifications, her employment experience, and the requirements to become a registered architect in Australia.

4. On 21 August 2023, the Tribunal wrote to the applicant to invite her to attend a telephone hearing on 26 September 2023.

5. On 30 August 2023, the Tribunal wrote again to the applicant to invite her, pursuant to s.359A of the Act, to comment on or respond to information held by the Tribunal that was potentially adverse to her case. The Tribunal advised them that the particulars of the information were:

   ·at the time the applicant made her subclass 407 visa application on 26 September 2019, she was nominated by her proposed employer, Blight Blight & Blight Pty Ltd;

   ·she applied to the Tribunal on 9 December 2019 for review of the Department’s decision to reject her subclass 407 visa application;

   ·the Tribunal’s records indicated that Blight Blight & Blight Pty Ltd also lodged an application for review of the decision to refuse its nomination of the applicant;

   ·the Tribunal made a decision on 12 July 2023 to affirm the nomination refusal decision; and

   ·accordingly, there was currently no approved nomination of the applicant by Blight Blight & Blight Pty Ltd, and the decision to refuse the nomination was not under review by the Tribunal.

6. The Tribunal advised the applicants that the information was relevant to the review because, subject to their comments or response, it indicated that:

   ·the applicant was not the subject of an approved nomination that has not ceased, as required by cl.407.214(b) and (c) and this would be the reason (or part of the reason) for the Tribunal to affirm the decision under review, as it was a requirement that the primary applicant met cl.407.214(b) and (c) the time of decision; and

   ·there was no evidence that she met the criteria in the other parts of the subclass 407 visa.

7. The applicant was requested to respond or provide comments by 13 September 2023, and advised that if she failed to do so (or failed to ask for an extension of time to do so) by that date, she would lose her entitlement to a hearing.

8. The Tribunal did not receive any response from the applicant, nor any request for an extension of time to do so, by 13 September 2023.

9. On 15 September 2023, the Tribunal wrote to the applicant to advise her that she had lost her entitlement to a Tribunal hearing and that the hearing of 26 September 2023 had been cancelled. The Tribunal advised her that she should provide any further information she wished to have taken into account to the Tribunal by 21 September 2023.

10. The Tribunal is satisfied that its s.359A letter was sent to the email address nominated by the applicant in the review application for the applicant’s authorised recipient for correspondence. There is no evidence that the Tribunal’s email was not delivered or was undeliverable.

11. The applicant has not responded to the Tribunal’s s.359A letter. In the circumstances, s.359C applies and pursuant to s.360(3), the applicant is not entitled to appear before the Tribunal. The Tribunal has no power to permit her to appear: see Yang v MIAC [2010] FMCA 890.

12. The applicant did not provide any additional evidence by 21 September 2023.

13. Accordingly, the Tribunal has proceeded to make its decision on the available evidence. In doing so, the Tribunal notes that the applicant was provided with an additional period in which to provide information to support their case but did not do so. In the circumstances, the Tribunal does not consider it unreasonable to proceed to a decision without any further deferral, having regard to the principles set out in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

14. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

    CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant meets cl.407.214, which provides as follows:

    …

    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 2.72A; 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.

    …

16. It is not disputed that the applicant’s sponsor, Blight Blight & Blight Pty Ltd, is not a Commonwealth agency, and thus the applicant must meet cl.407.214. It is also not disputed that at the time of the delegate’s decision, the applicant did not have an approved nomination of a program of occupational training by her sponsor, and thus did not meet cl.407.214(b). This was because the Department had refused to approve the nomination made by the sponsor. There is no evidence before the Tribunal of any other approved nomination of the application.

17. Accordingly, the Tribunal must find that she does not meet cl.407.214(b) and cannot meet cl.407.214 as a whole. As a result, it must affirm the decision not to grant her a subclass 407 visa as there is no evidence before the Tribunal that she can meet the requirements of any other part.

    DECISION

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

    Alison Mercer
    Member