SINGH (Migration)

[2020] AATA 5863

SINGH (Migration) [2020] AATA 5863 (10 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SARJOT SINGH

CASE NUMBER:  1821041

DIBP REFERENCE(S):  BCC2018/1396693 CLF2018/190709

MEMBER:Karen Synon

DATE:10 December 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 10 December 2020 at 1:51pm

CATCHWORDS

MIGRATION – Training (Class GF) visa – Subclass 407 (Training) – no approved nomination – business ownership changed – new nomination lodged – decision under review affirmed    

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cl 407.214

CASES

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 Immigration on 11 July 2018 to refuse to grant the visa applicant a Training (Class GF) Subclass 407 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 26 March 2018.

3. The delegate refused to grant the visa on the basis that cl.407.214 was not satisfied because the applicant was not the subject of an approved nomination.

4. The applicant applied for review of the primary decision on 20 July 2018 and provided a copy of the department’s decision.

5. The applicant was represented in relation to the review by his registered migration agent.

6. On 25 November 2020 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting him to provide comments or respond, in writing, to information it considered would the reason or part of the reason for affirming the decision under review.  In particular, the Tribunal raised information indicating that a nomination made in respect of him by Evafresh Pty Ltd (the nominator), was refused by a delegate of the Minister for Home Affairs, that the nominator sought a review of that decision but on 20 November 2020 the Tribunal affirmed the decision of the delegate to refuse the nomination made by Evafresh Pty Ltd and that this meant that the nominator’s application for the nominated position had not been approved.  Further, the applicant was advised there was no information contained on the Tribunal or Department’s file records that he is the subject of an approved nomination.  The applicant was advised that this information is relevant to the review because cl.407.214 requires that, at the time of decision, he must be the subject of an approved nomination by an approved sponsor.  Comments or a response in writing were invited by 9 December 2020.

7. Relevantly, on 25 November 2020 the Tribunal received the following correspondence from the applicant’s authorised recipient and registered migration agent:

   We hereby inform we no longer represent the above review applicant as we are unable to get instructions.  You may contact the review applicant directly.

8. In response on 25 November 2020 the Tribunal wrote to the applicant’s authorised recipient and registered migration agent advising:

   On 25 November 2020 you advised us that you no longer represent [the applicant].  However, as their authorised recipient, by law we are required to continue to send you correspondence in connection with the review unless and until the applicant advises otherwise.  Please find enclosed a letter requesting the applicant to confirm your advice that you are no longer to receive correspondence in connection with the review.  By providing you with these documents, we are taken to have given the documents to the applicant.  You should ensure that the applicant is informed of this letter as soon as possible.

9. Also provided to the applicant via his authorised recipient and registered migration agent, was a letter relevantly advising him:

   You nominated Mr Babu Chokkappa as your authorised recipient to receive correspondence in connection with this review.  On 25 November 2020 we were told by Mr Babu Chokkappa that they no longer represent you in this review and should no longer receive correspondence on your behalf.  It is important that you now complete and return one of the following forms to us as soon as possible.  We will continue to send correspondence to Mr Babu Chokkappa if you do not return either of the forms mentioned below.

10. The necessary forms (MR5 and MR6) were provided to the applicant, with this correspondence, to affect any change.

11. The s.359A invitation was sent to the applicant’s authorised recipient’s email address on 25 November 2020 and in this letter the applicant was advised that if a response or comments was not provided in writing by 9 December 2020, 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 he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.  The applicant did not provide comments or a response within the prescribed period and no extension of time in which to respond was requested.  Nor has any correspondence been received from the applicant or his authorised recipient and registered migration agent since the correspondence detailed above.

12. 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 an applicant has no entitlement to a hearing, the Tribunal has no power to permit him to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal is satisfied that it has communicated with the applicant via his authorised recipient and registered migration agent at his advised email address in a prescribed manner. The Tribunal has accordingly decided to proceed to decision without taking further steps to obtain the comments or response.

13. In doing so the Tribunal notes that no substantive submissions or evidence has been provided since the application for review was lodged on 20 July 2018 over two years ago.

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 meets the requirements of cl.407.214(b) which requires him to be the subject of an approved nomination of occupational training by an approved work sponsor.

16. As recorded above, in accordance with the provisions of s.359A, the applicant was invited to comment on or respond to the information that a nomination made in respect of him by Evafresh Pty Ltd (the nominator), was refused by the Department, that the nominator sought a review of that decision but on 20 November 2020, the Tribunal affirmed the decision of the delegate to refuse the nomination and that there was no information contained on the Tribunal or Department’s file records that he is the subject of an approved nomination by an approved sponsor.  The applicant did not provide any comment or response.

17. As there is no approved nomination of a program of occupation training in relation to the applicant which could satisfy cl.407.214, the Tribunal finds that the applicant is not presently the subject of an approved nomination by a standard work sponsor.

18. For these reasons the requirements of cl.407.214 are not met.

19. It follows that the decision under review to refuse the applicant the visa must be affirmed.

    DECISION

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

    Karen Synon
    Member