Tjhin (Migration)

[2023] AATA 785

Tjhin (Migration) [2023] AATA 785 (5 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chevy Tjhin

CASE NUMBER:  1920812

HOME AFFAIRS REFERENCE(S):          BCC2019/2481620

MEMBER:C. Packer

DATE:5 April 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 5 April 2023 at 2:43pm

CATCHWORDS
MIGRATION – Training (Class GF) visa – Subclass 407 (Training) – chef – related nomination of training program refused and affirmed on review – agent’s mistakes when drafting training plan – role intended as senior, not trainee – COVID restrictions – work history and personal circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB(1)(b)
Migration Regulations 1994 (Cth), Schedule 2, cl 407.214(b)

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 11 July 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 10 May 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. The applicant appeared by phone before the Tribunal on 5 April 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a program of occupational training

5. The applicant was nominated on 10 May 2019 for a subclass 407 visa by Lucy Liu Pty Ltd ATF Lucy Liu Unit Trust. This nomination was refused by a delegate of the Minister on 11 June 2019. On 29 June 2019 the nominator applied for a review of the delegate’s nomination refusal decision (case number 1917297). However, on 14 August 2022 the Tribunal (differently constituted) affirmed the decision not to approve the nomination.

6. On 16 March 2023 the Tribunal invited the applicant to comment on or respond to the foregoing information. The Tribunal’s letter advised the applicant that the 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;

7. The Tribunal’s letter advised the applicant that as the nomination of the program of occupational training has not been approved, he would not satisfy clause 407.214(b).

8. On 30 March 2023 the applicant responded, and stated in part:

   I am writing this letter in response to my application training visa subclass 407. In 2019 I applied the visa
   with the restaurant Lucy Liu through a visa agency. The agency name is McKkrs, I applied through
   agency in a hope that I would have obtained more experience in the kitchen.
   My original role was to be a senior role who is in charge of the kitchen. My training plan was however
   got changed by my migration agency due to errors from their end. Hence my training plan was made to
   appear like it is just a basic training chef instead of a senior role chef. Due to this mistake that I was
   unaware myself, my application subclass 407 was refused.
   In 2020, Covid-19 hit and affected my employment. As a result, I was at that time got stood down from
   The Lucy Liu restaurant and was unemployed. It was very stressful and devastating for me, as I was
   directly affected by it.
   I had no jobs for almost a year and received no support from anyone. During that time, I really tried to
   keep myself above the feet and did everything I can to support hospitality industry.
   A year later, I was working in many restaurants to support and help the industry to gain back their
   customers and their business back to normal again. I was working extra long hours to help support
   hospitality industry in Australia. This is because I understand that it was very challenging time for
   everyone to survive and have the business up and running. It is evident that I am part of the people that
   really stayed until the end supporting Australia to recover our economy from covid, as it is a fact that
   many non citizens and non permanent residents chose to give up and flew back to their home countries.
   Unlike any one of them, I stayed here the whole time because I believe in my competence and skills that
   I can do well to help the community in Australia.
   I did my whole study in Australia, I worked since graduating and until now been enjoying every moment
   of my life in Australia. I met my partner, my colleagues, closest friends that I now call my family. I am
   really hoping that I can continue to serve the community as I really feel and see myself that Australia is my home, hence I would like to seek your consideration in order for me to stay in Australia.

9. At hearing, the applicant discussed how the migration agent had made mistakes when drafting his training plan, and that had led to the nomination being refused. The Tribunal accepts that the applicant has had a difficult time in Australia during the covid pandemic. Nonetheless, at hearing the Tribunal discussed the requirement for the 407 visa that there be an approved nomination of the program of occupational training.

10. In sum, the Tribunal finds there is 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 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