Tarantino (Migration)

[2017] AATA 1206

Tarantino (Migration) [2017] AATA 1206 (13 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Cristina Tarantino

CASE NUMBER:  1702002

DIBP REFERENCE(S):  BCC2016/3919985 CLF2017/17114

MEMBER:Alison Mercer

DATE:13 July 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 13 July 2017 at 2:29pm

CATCHWORDS

Migration – Class GC Training and Research-Occupational Trainee visa – Subclass 402 – Legislative changes – Transition to subclass 407 program – Lodged application for subclass 407 visa – Not a reviewable decision

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29

Migration Act 1958, ss 65, 140GB, 140E, 338, 347, 411, 412
Migration Regulations 1994, Schedule 2, r 2.72I, r 2.75A, r 4.02(1AA), cl 402.221(1)

CASES

Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182
Ahmad v MIBP [2015] FCCA 1486
Minister for Immigration and Citizenship v Islam [2012] FCA 195; (2012) 202 FCR 46
Minister for Immigration and Border Protection v Lee [2014] FCCA 2881

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 6 February 2017 for review of decision made by an officer of the Department of Immigration and Border Protection on 19 January 2017 to refuse to grant the applicant a Class GC subclass 402 (Training and Research – Occupational Trainee) visa. For the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

2. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal and the circumstances in which they are reviewable.

3. A decision to refuse a Class GC (subclass 402) visa is reviewable by the Tribunal under s.338(2) if the applicant made the visa application while in the migration zone, and either (i) the applicant is sponsored by an approved sponsor at the time the application for review of the visa refusal is made, or (ii) an application for review of a decision not to approve the sponsor has been made but at the time the application for review of the visa refusal is made, review of the sponsorship decision is pending.

4. 'Sponsored' includes being identified in a nomination under s.140GB of the Act. It is a criterion for the grant of a subclass 402 visa that the applicant is identified in a nomination by an occupational trainee sponsor or a training and research sponsor; the nomination meets the criteria in r.2.72I; and the approval of the nomination has not ceased under r.2.75A of the Regulations (cl.402.221(1)).

5. In this case, the applicant made the visa application on 17 October 2016 whilst in the migration zone. She was nominated for an occupational traineeship by a sponsor, the Trustee for the A Orlando (Victoria) Unit Trust (trading as Heading Out Hair & Beauty). The nomination application lodged by the Trustee for the A Orlando (Victoria) Unit Trust (trading as Heading Out Hair & Beauty)was refused by the Department on 2 December 2016.

6. There is no record of the Trustee for the A Orlando (Victoria) Unit Trust (trading as Heading Out Hair & Beauty) lodging a review application in respect of the nomination refusal with this Tribunal. An application was made to the Tribunal by the applicant on 6 February 2017 for review of a decision to refuse her a Training and Research (Class GC) (subclass 402) visa. 

7. The Tribunal formed the preliminary view that the visa refusal decision was not reviewable because at the time the review application was lodged on 6 February 2017, there was no nomination of an occupation or activity relating to the applicant approved under r.2.72I that was in force. There was also no review of a decision to not approve the sponsor pending before the Tribunal, as the Trustee for the A Orlando (Victoria) Unit Trust (trading as Heading Out Hair & Beauty) was and is an approved occupational trainee sponsor (approval as a sponsor was granted by the Department on 9 June 2015 and ceases on 9 June 2018).

8. The Tribunal wrote to the applicant via her registered migration agent on 2 March 2017 inviting her comments on whether a valid application for review had been made. The Tribunal indicated because at the time that the review application was lodged, the applicant was not identified in a nomination under s.140GB that was approved or pending, and nor was there a pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E, or a decision not to approve the nomination under s.140GB of the Act. The Tribunal noted that on 22 December 2016, a new nomination had been lodged by the Trustee for the A Orlando (Victoria) Unit Trust (trading as Heading Out Hair & Beauty) in relation to a subclass 407 visa for the applicant. The Tribunal advised that unfortunately, this nomination could not be taken into account as a nomination for the purposes of the subclass 402 visa review, as the nomination was not made pursuant to r.2.72I. The applicant was advised that ultimately, a Tribunal Member would determine whether her review application had been validly lodged and she was invited to provide comments or a response to the issue of validity by 16 March 2017, which would be taken into account before a final determination of the issue was made.

9. On 6 March 2017, the applicant provided a response in which she stated (in summary) that as a layperson, she entrusted her visa application to a registered migration agent, but that both her agent, proposed training provider (and current employer) and she had struggled to understand the transition from the subclass 402 visa program to the subclass 407 visa program. The applicant stressed that she genuinely intended to improve her hairdressing skills by undertaking a detailed program of training with the sponsor, the Trustee for the A Orlando (Victoria) Unit Trust (trading as Heading Out Hair & Beauty), with whom she had been working already.  She stated that this employer had an international reputation and it would enhance her skills to complete a detailed training program there.  She provided a copy of a more detailed training program that had been prepared following the visa and nomination refusals.

10. The applicant stated that in hindsight, she should have sought review of the original nomination refusal with the Tribunal because it would likely have succeeded with the new training program. However, at the time, there was considerable confusion about the transition from the subclass 402 program to the subclass 407 program and she was advised that it would be best to lodge a subclass 407 visa application as ‘insurance’ in the event that her subclass 402 visa application was not assessed. The applicant stated that it had been very confusing and she had received conflicting advice from her agent and employer as to what her best course of action was. In relation to the issue of whether she had lodged a valid review application in relation to the refusal of the subclass 402 visa application, the applicant reiterated that she believed this application would have succeeded had the Department had the more detailed training plan now available. The applicant noted with appreciation the efforts made by her agent and employer to assist her, and stated that she had already learnt many valuable skills through her training but had much more that she wished to learn. 

11. Subsequently, the applicant’s agent provided evidence that a nomination of the applicant for a subclass 407 visa had been lodged with the Department on 22 December 2016, which had yet to be decided.

12. The Tribunal has taken the submissions into account. However, it has also considered the judgment of the Federal Circuit Court of Australia in Minister for Immigration and Border Protection v Lee [2014] FCCA 2881 and Minister for Immigration and Citizenship v Islam [2012] FCA 195; (2012) 202 FCR 46, where a similarly worded criterion for the grant of a subclass 457 visa was considered. The Tribunal is of the view that in order to meet the requirements of s.338(2)(d)(i), there must have been, at the time the review application was made, an approved nomination of an occupation or activity in respect of the applicant by a specified type of sponsor. The Tribunal notes that as the applicant had not been identified in a nomination under s.140GB of the Act that was in force at the time the application for review was lodged, s.338(2)(d)(i) is not met. This is because the original nomination made under s.140GB of the Act (which had to satisfy r.2.72I) had been refused by the Department on 2 December 2016 and no review of this decision was sought at the Tribunal. The Tribunal acknowledges that the applicant was identified in a new nomination by the same sponsor that was made to the Department on 22 December 2016, and that this nomination was pending with the Department at the time that the applicant lodged her review application in respect of her subclass 402 visa refusal on 6 February 2017. However, due to legislative changes to the Occupational Trainee program which took effect on 19 November 2016, the new nomination was not made under s.140GB and r.2.72I for the purposes of the subclass 402 visa. ‘Sponsored’ is defined to include being identified in a nomination under s.140GB: s.337 and r.4.02(1AA), and s.140GB allows nominations to be made ‘for visas of a prescribed kind.’ Further, s.338(2)(d) refers to a sponsorship ‘by an approved sponsor’, which applies ‘where it is a criterion for the grant of the visa.’ Reading these provisions together, the Tribunal infers that the nomination must be for the same kind of visa and therefore capable of satisfying the criterion for the grant of the visa, in order for the nomination to satisfy s.338(2)(d) and enliven the Tribunal’s jurisdiction.

13. Accordingly, the Tribunal finds that the applicant does not satisfy s.338(d)(i).

14. At the time the application for review was lodged, there was also no application for review of a decision not to approve the sponsor as an occupational trainee sponsor which was pending before the Tribunal, for the purposes of s.338(2)(d)(ii).

15. The Tribunal has also considered whether the alternative requirements of s.338(2)(d)(ii) are met in respect of this application. Section 338(2)(d)(ii) requires that: “an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.”

16. There is no evidence before the Tribunal that, at the time the review application was lodged, there was a pending review of the decision to refuse the related sponsorship application.

17. Under s.338(2)(d)(ii) the Tribunal will have jurisdiction to review a visa refusal where review of a related sponsorship refusal decision is pending at the time the visa refusal review application is made.[1] While the requirement for an approved nomination is the criterion which attracts the application of s.338(2)(d), the second limb in s.338(2)(d)(ii) is to be read on its own terms, such that it will be met by a pending application for review of a decision to refuse approval of the sponsorship.[2]

    [1] Ahmad v MIBP [2015] FCCA 1486 (Judge Street, 29 May 2015)

    [2] Ahmad v MIBP [2015] FCCA 1486 (Judge Street, 29 May 2015) at [9] to [10].

18. This interpretation was considered in the judgment of Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182, in which it was confirmed that s.338(2)(d)(ii) involves a distinct question from that in s.338(2)(d)(i) in that it focuses not on the subsequent nomination approval process in s.140GB, but instead relates to the decision to approve (or not approve) a sponsor under s.140E.[3]  Following this judgment, a pending review of a nomination refusal is insufficient to enliven jurisdiction under s.338(2)(d)(ii).

    [3] Ahmad v MIBP [2015] FCCA 1486 (Judge Street, 29 May 2015) at [8] - [10].

19. Accordingly, the Tribunal finds that the requirements of s.338(2)(d)(ii) are not met.

20. Given the above findings, the Tribunal finds that the decision to refuse the applicant a subclass 402 visa is not a reviewable decision by the Tribunal in accordance with s.338(2)(d) and r.4.02(1A). Nor is it a decision reviewable under any of the subparagraphs of s.338 and r.4.02.

21. As the delegate’s decision is not reviewable in these circumstances, it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in the matter.

    DECISION

22. The Tribunal does not have jurisdiction in this matter.

    Alison Mercer
    Member