Tan (Migration)

[2023] AATA 210

Tan (Migration) [2023] AATA 210 (23 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sook Fun Tan

REPRESENTATIVE:  Ms Charlene Tan (MARN: 1680019)

CASE NUMBER:  1914386

HOME AFFAIRS REFERENCE(S):          BCC2019/1498966

MEMBER:C. Packer

DATE:23 January 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 23 January 2023 at 2:30pm

CATCHWORDS
MIGRATION – Training (Subclass 407) visa – Subclass 407 – no nomination approved under section 140GB of the Act – decision under review affirmed

LEGISLATION 
Migration Act 1958, ss 65, 140GB, 359, 360, 363
Migration Regulations 1994, rr 2.72, 2.73, Schedule 2, cl 407.214

CASE
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 Home Affairs on 5 June 2019 to refuse to grant the visa applicant a Training (Class GF) Subclass 407 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 25 March 2019. The delegate refused to grant the visa on the basis that there was no approved nomination of a program of occupational training in relation to the applicant under paragraph 140GB(1) (b) of the Act, and so cl.407.214 was not met.

3. On 15 December 2022 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the review applicant to provide comments or response on information. The letter also invited the applicant to provide information. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response and information was not provided in writing by 29 December 2022 the Tribunal may make a decision on the review without taking further steps to obtain the comments or response and information and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

4. On 29 December 2022 the applicant’s representative responded and stated in part:

   We act for TAN Sook Fun (“Applicant”) in her application for review.
   I confirm that my client has no further comment to provide in her matter.

5. The review applicant has not provided the requested information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

6. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the Training (class GF) Training (subclass 407) visa.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. On 15 December 2022 the Tribunal wrote to the applicant inviting the applicant to provide comments or response on information that addressed the requirements for the Training (class GF) Training (subclass 407) visa. The letter stated in part:

    On 9 December 2022 in Tribunal case 1912176 the Tribunal found the nominator,
   Chung Wah Association, did not meet the requirements for approval of the
   nomination of the program of occupational training. The Tribunal was not satisfied
   that:

   ·     the training program is specifically tailored to the training needs of the

   nominee; and of a duration that meets the specific training needs of the
   nominee (reg 2.72B(3)(a))

   ·     the nominated program is offered as a genuine training opportunity for

   the purpose of enhancing the nominee’s skills (reg 2.72A(16))
   This information is relevant to the review because clause 407.214(b) requires:

   (b) the nomination has been approved under section 140GB of the Act on the basis of
   the criteria in regulation 2.72A;

   As the nomination of the program of occupational training has not been approved, you
   would not satisfy clause 407.214(b).

   If we rely on this information in making our decision, we may affirm the decision made
   by a delegate of the Minister for Home Affairs on 5 June 2019 to refuse to grant you a
   Training (Class GF) Subclass 407 visa.

8. On 29 December 2022 the applicant’s representative responded and stated in part that the applicant had no further comment to provide.

9. In sum, the Tribunal finds there is no nomination approved under section 140GB of the Act on the basis of the criteria in regulation 2.72A.

10. For these reasons, cl.407.214(b) is not met. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

    decision

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

    C. Packer

    
    

    Member