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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Singal (Migration)

Details

AGLC: Singal (Migration) [2023] AATA 3150
Case: [2023] AATA 3150
Decision Date: 22 September 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for a Class GF (Training) subclass 407 visa. The applicant sought review of the delegate's decision to refuse the visa. The sponsor for the applicant was Blight Blight & Blight Pty Ltd.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 407.214 of the Migration Regulations 1994. This clause outlines specific criteria for a Training (Class GF) visa when the approved sponsor is not a Commonwealth agency, including the requirement for an approved nomination of a training program.

The Tribunal noted that it was not disputed that the sponsor was not a Commonwealth agency. Crucially, it was also not disputed that at the time of the delegate's decision, the applicant did not have an approved nomination from her sponsor, as the Department had refused to approve the nomination. As there was no evidence of any other approved nomination before the Tribunal, it was compelled to find that the applicant did not meet clause 407.214(b) and, consequently, could not meet clause 407.214 as a whole. The Tribunal affirmed the decision not to grant the applicant a subclass 407 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.CONSIDERATION OF LAW, CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets cl.407.214, which provides as follows:…407.214If 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.… 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. 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 The Tribunal affirms the decision not to grant the applicant a Class GF (Training) subclass 407 visa.Alison MercerMember

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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