Singh (Migration) - [2019] AATA 2915

Singh (Migration) [2019] AATA 2915 (24 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Surya Prakash Singh
CASE NUMBER:  1611502
DIBP REFERENCE(S):  BCC2015/3317353 CLF2016/48211
MEMBER:Jade Murphy
DATE:24 June 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Training and Research (Class GC) visa.
Statement made on 24 June 2019 at 1:11pm

CATCHWORDS
MIGRATION – Training and Research (Class GC) visa – Subclass 402 (Training and Research) – no response to s 359A invitation – not entitled to appear before the Tribunal – Occupational Trainee stream – occupational training not provided by the Commonwealth – subject of an approved nomination – nomination application refused – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), rr 2.72I, 2.57, Schedule 2, cl 402.221
CASES
Singh v MIBP [2017] FCAFC 67

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 Immigration on 7 July 2016 to refuse to grant the visa applicant a Training and Research (Class GC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 10 November 2015. At the time of application, Class GC contained one subclass: Subclass 402 (Training and Research).
The criteria for a Subclass 402 visa are set out in Part 402 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Occupational Trainee stream, the Research stream, or the Professional Development stream.
In the present case, the applicant is seeking the visa in the Occupational Trainee stream. This stream is for persons who want to improve their occupational skills (including in the field of sport) through participation in workplace-based training in Australia. The delegate refused to grant the visa because the applicant did not meet cl.402.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant is intending to undertake occupational training by the commonwealth as specified in 402.221(1)(b), nor was the delegate satisfied that the applicant was identified in a nomination by a training and research sponsor or occupational trainee sponsor as specified in 402.221(1)(a).
On 7 May 2019 the Tribunal wrote to the applicant pursuant to s.359A of the Act and provided particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicant to comment on or respond to the information.
The particulars of the information were that the application for review of the related nominated position, made by Alliance Abroad…

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 Singh (Migration)

Details

AGLC: Singh (Migration) [2019] AATA 2915
Case: [2019] AATA 2915
Decision Date: 24 June 2019

CaseChat Overview and Summary

This matter concerned an application for a Subclass 402 (Training and Research) visa in the Occupational Trainee stream. The applicant sought review of a decision not to grant the visa. The primary issue before the Tribunal was whether the applicant satisfied the requirements of clause 402.221 of the Migration Regulations 1994.

The Tribunal was required to determine whether the applicant met the sponsorship and nomination requirements for the visa. Specifically, it needed to ascertain if the occupational training was to be provided by the Commonwealth, and if not, whether the applicant was identified in a valid and current nomination by an approved sponsor, and if there was any adverse information concerning the nominator. The Tribunal also considered whether the applicant had responded to an invitation to comment on information relevant to the decision.

The Tribunal reasoned that the applicant's occupational training was not to be provided by the Commonwealth. Consequently, the applicant was required to be identified in an approved nomination by a training and research sponsor or an occupational trainee sponsor, which nomination must not have ceased. The Tribunal noted that a nomination application made by Alliance Abroad International Pty Ltd, identifying the applicant, was refused on 7 July 2016, and a subsequent review of this refusal was dismissed by the Tribunal on 3 May 2019. The applicant had been invited to respond to this information but provided no response. As there was no evidence before the Tribunal that the applicant was identified in any other current nomination, the Tribunal concluded that the applicant had not satisfied the requirements of clause 402.221.

Accordingly, the Tribunal affirmed the decision not to grant the applicant a Training and Research (Class GC) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant satisfies the requirements in 402.221 for the grant of a Subclass 402 visa.Sponsorship and nomination requirements In order to satisfy cl.402.221, applicants in the Occupational Trainee stream must meet certain requirements relating to sponsorship and, in some cases, nomination, depending on whether or not the occupational training is to be provided by the Commonwealth. If the occupational training is to be provided to the applicant by the Commonwealth, the requirements are: that a training and research sponsor or an occupational trainee sponsor has agreed, in writing, to be the approved sponsor in relation to the applicant, that the sponsor has not withdrawn its agreement and that the sponsor has not ceased to be an approved sponsor. If the occupational training is not to be provided to the applicant by the Commonwealth, then the applicant must be identified in a nomination which meets the criteria in r.2.72I by a training and research sponsor or occupational trainee sponsor, and that nomination must not have ceased. Additionally, there must be no adverse information known to Immigration about the nominator or a person associated with the nominator, or it must be reasonable to disregard any such information. ‘Adverse information’ and ‘associated with’ are defined in r.2.57 of the Regulations. There is no evidence before the Tribunal, nor any submission to suggest that the applicant’s occupational training is to be provided by the Commonwealth. As a result the Tribunal is not satisfied that the applicant meets clause 402.221(1)(b). As a result, the Tribunal has considered whether the applicant meets clause 402.221(1)(b), specifically whether the applicant is identified in a r.2.72I approved nomination by a training and research sponsor or an occupational trainee sponsor, and whether the nomination is current. As set out in the delegate’s decision and provided to the Tribunal on review, the applicant was identified in an occupational trainee nomination application made by Alliance Abroad International Pty Ltd on 10 November 2015. This nomination application was refused or withdrawn on 6 April 2016. On 14 May 2016 a further nomination was lodged by Alliance Abroad International Pty Ltd identifying the applicant as the nominee. This nomination was refused by a delegate for the then Department of Immigration on 7 July 2016. On 27 July 2016 Alliance Abroad International Pty Ltd lodged an application for review with the Tribunal. On 3 May 2019 the Tribunal dismissed the review, and as a result affirmed the decision of the Department to refuse the nomination application. As set out above, the applicant was invited to comment on or respond to this information. The Tribunal did not receive any response from the applicant. At the time of this decision, the applicant has not provided any information or response to indicate that the applicant has been identified in any other nomination by an approved Training and research sponsor or an Occupational Trainee sponsor. There is no evidence before the Tribunal that the applicant is identified in any nomination by an approved Training and research sponsor or an Occupational Trainee sponsor.

Decision

Reasons for decision

The applicant has only sought to satisfy the criteria for a Subclass 402 visa in the Occupational Trainee stream. No claims have been made in respect of the other visa streams. As requirements that must be met by a person seeking the visa in the Occupational Trainee stream have not been met, the decision under review must be affirmed.DECISION The Tribunal affirms the decision not to grant the applicant a Training and Research (Class GC) visa.Jade MurphyMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.