Tomas (Migration)

[2017] AATA 968

Tomas (Migration) [2017] AATA 968 (16 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Roldan Tomas

CASE NUMBER:  1615653

DIBP REFERENCE(S):  BCC2016/1804297 CLF2016/60698

MEMBER:Alison Mercer

DATE:16 June 2017

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 16 June 2017 at 11:31am

CATCHWORDS

Migration – Training and Research (Class GC) visa – Subclass 402 – Occupational Trainee stream – Subject of an approved nomination – Nominating organisation no longer an approved sponsor – Subclass closed to new applications

LEGISLATION

Migration Act 1958, ss 65, 140E, 359A

Migration Regulation 1994, r 2.72I, r 2.57, r 2.75A, Schedule 2, cl 402.221

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 7 September 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).

2. The applicant applied for the visa on 18 May 2016. At the time of application, Class GC contained one subclass: Subclass 402 (Training and Research).

3. 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.

4. 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, which required that he was identified in a nomination by a training and research sponsor or an occupational trainee sponsor that met r.2.72I, where that nomination had not ceased under r.2.75A. The delegate noted that the applicant was identified in an occupational trainee nomination application made by The Trustee for the K T Trust on 11 May 2016, but that this nomination was administratively finalised on 22 July 2016, on the basis that the nominating organisation was not an approved Training and Research sponsor under s.140E(1) of the Act. The delegate further noted that this information was put to the applicant in writing but he provided no response. Accordingly, the delegate found that there was no evidence that the applicant was identified in any nomination made by an approved Training and Research sponsor or Occupational Trainee sponsor and therefore he did not meet cl.402.221(1)(a). Nor was there any evidence that the applicant was intending to undertake an occupational training program provided by the Commonwealth, as required by cl.402.221(1)(b). As such, the applicant was unable to satisfy cl.402.221 as a whole.

5. The Tribunal received a review application from the applicant on 26 September 2016, which was accompanied by a copy of the delegate’s decision. 

6. On 9 May 2017, the Tribunal wrote to the applicant to invite him to attend a hearing on 31 May 2017. He was asked to provide any documents and/or submissions he intended to rely upon at least 7 days prior to the hearing. The Tribunal specifically requested that the applicant provided evidence that he was the subject of an approved nomination by a training and research sponsor or occupational trainee sponsor that had not ceased, as required by cl.402.221 in the Occupational Trainee stream. The Tribunal noted that a nomination lodged and approved after 19 November 2016 would not satisfy this requirement, as cl.402.221 required a nomination that met r.2.72I and this regulation had been repealed on 19 November 2016.

7. The applicant appeared before the Tribunal on 31 May 2017 to give evidence and present arguments. He told the Tribunal that he originally thought that his visa was refused because he had done something wrong but he now understood that it was not to do with him, but because Oztech (the trading name of the K T Trust) were not approved. The applicant said that Oztech had misled him, and many others in the same situation, about this. 

8. The applicant told the Tribunal that he was still working for F & C Vogels dairy farm in regional Victoria, which was to have been the provider of the training proposed in the nomination made by the K T Trust.  The applicant said that F & C Vogels was very unhappy with the situation as it had lost 3 workers due to the refusal of their subclass 402 visas because of Oztech not being an approved sponsor. F & C Vogels has applied for approval as a standard business sponsor, as they have discussed sponsoring and nominating the applicant for a subclass 457 visa.  However, the migration agent engaged by the business had advised that they should wait until the outcome of his review with the Tribunal was known.  The applicant said that he and the owners of the farm were aware that there had been changes to the subclass 457 visa but were unsure of what this meant for his situation yet. 

9. In relation to K T Trust (trading as Oztech), the applicant said that it charged him (and many others) fees to obtain subclass 402 visas for them but did not inform them that it was not an approved sponsor.  The applicant said that if he had known this, he could have made other choices like getting another agent and/or organisation to nominate him for the visa.

10. Following the hearing, the Tribunal wrote to the applicant pursuant to s.359A of the Act. The Tribunal advised the applicant that it was required to invite him to comment on potentially adverse information that would, subject to his comments or response, be the reason (or part of the reason) for affirming the decision under review. The Tribunal advised him that the particulars of the information were that:

    • Channel Tel Pty Ltd as trustee for the K T Trust (trading as Oztech Australian Experts) was an approved training and research/ occupational training sponsor from 14 December 2012 to 13 December 2015;
    • on 16 November 2015, Oztech applied to the Department of Immigration to be approved as a training and research/occupational training sponsor again;
    • on 19 February 2016, the Department of Immigration refused to approve Oztech’s application to be approved as a sponsor. Oztech applied for a review of that decision to the Tribunal;
    • at the time the applicant made his subclass 402 visa application on 18 May 2016, he was nominated by his occupational training sponsor Oztech;
    • the Department rejected his application on 7 September 2016 because the delegate found that he did not meet cl.402.221 of Schedule 2 to the Migration Regulations as the delegate found that the nomination of him by Oztech was administratively finalised on 22 July 2016; that is, that it could not be approved because Oztech had been refused approval as a training and research sponsor;
    • he applied to the Tribunal on 26 September 2016 for review of the Department’s decision to reject his subclass 402 visa application;
    • the Tribunal (differently constituted) affirmed the Department’s decision not to approve Oztech as a training and research/occupational trainee sponsor on 21 December 2016;
    • there is no record that Oztech sought judicial review of the Tribunal’s decision;
    • the applicant not been nominated for a subclass 402 visa in the Occupational Trainee or any other stream by the Commonwealth of Australia; and
    • accordingly, there is currently no approved nomination of him by Oztech or any other approved training sponsor (including the Commonwealth of Australia).

11. This Tribunal indicated that this information was relevant to the review because, subject to the applicant’s comments or response, it indicated that:

    • he was not the subject of an approved nomination that met r.2.72I by an approved training sponsor, as required by cl.402.221; and
    • as indicated in the hearing invitation letter to him dated 9 May 2017, as a result of legislative amendments to the Regulations that came into effect on 19 November 2016, r.2.72I was abolished and therefore a nomination of him lodged after this date would not satisfy cl.402.221(1)(a)(ii) and thus would not meet cl.402.221 as a whole; and
    • this would be the reason (or part of the reason) for the Tribunal to affirm the decision under review, as it is a requirement that the applicant met cl.402.221 at the time of decision.

12. The Tribunal requested that the applicant provide any response or comments he wished to make by 15 June 2017.

13. The applicant did not provide any response or comments to the Tribunal.

14. For the following reasons, the Tribunal has concluded 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 cl.402.221.

    Sponsorship and nomination requirements

16. 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.

17. 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.

18. 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.

19. Based on the oral and documentary evidence before the Tribunal, the Tribunal makes the following findings:

    ·Channel Tel Pty Ltd, the Trustee for the K T Trust (trading as Oztech Australian Experts) was an approved Training and Research and/or Occupational Trainee sponsor from 14 December 2012 to 13 December 2015;

    ·Channel Tel Pty Ltd, the Trustee for the K T Trust (trading as Oztech Australian Experts) applied to the Department on 16 November 2015 to be approved again as a sponsor;

    ·the Department refused to approve Channel Tel Pty Ltd, the Trustee for the K T Trust (trading as Oztech Australian Experts) as a training and research sponsor on 19 February 2016 and the company applied for a review of this decision to the Tribunal;

    ·the applicant was nominated for a subclass 402 visa in the Occupational Trainee stream by Channel Tel Pty Ltd, the Trustee for the K T Trust (trading as Oztech Australian Experts) on 11 May 2016 and lodged his subclass 402 visa application on 18 May 2016;

    ·the nomination application by Channel Tel Pty Ltd, the Trustee for the K T Trust (trading as Oztech Australian Experts) was administratively finalised by the Department on 22 July 2016 – no approval was made on the basis that the nominator was not an approved sponsor;

    ·the Tribunal (differently constituted) affirmed the Department’s decision not to approve Channel Tel Pty Ltd, the Trustee for the K T Trust (trading as Oztech Australian Experts) as a sponsor for Training and Research or Occupational Trainee purposes on 21 December 2016;

    ·there is no record that Channel Tel Pty Ltd, the Trustee for the K T Trust (trading as Oztech Australian Experts) sought judicial review of that decision; and

    ·the applicant has not been nominated for a subclass 402 visa in the Occupational Trainee or any other stream by the Commonwealth of Australia.

20. As discussed with the applicant at the hearing, the Tribunal is satisfied that, although it may have been intended that the applicant undertake a program of training with F & C Vogels dairy farm, the nomination of the applicant for the training program that was lodged by Channel Tel Pty Ltd was not approved, on the basis that the Department had refused to approve the nominating company as a sponsor for these purposes. This sponsorship refusal was subsequently affirmed by the Tribunal (differently constituted). There is no indication that the applicant was, or has ever been, the subject of a nomination for a training program made by the Commonwealth. Accordingly, the Tribunal finds that he is not the subject of an approved nomination that satisfies cl.402.221(1)(a) or (b).

21. As further discussed with the applicant at the hearing, cl.402.221(1)(a) requires that any nomination of the applicant by a sponsor is approved and meets r.2.72I of the Regulations. However, r.2.72I was repealed on 19 November 2016 as part of a series of legislative amendments to the Regulations which also saw the abolition of the subclass 402 visa and its replacement with a new subclass 407 (Training) visa – see the Migration Amendment (Temporary Activity Visas) Regulation 2016. The effect of this is that the legacy visas and legacy sponsor categories are closed to new applications from 19 November 2016. Further, as at 19 November 2016 no new nominations for applicants for subclasses 401, 402 (Occupational Trainee stream) and 420 visas can be made, including by legacy sponsors and including for legacy visa applications made before 19 November 2016.[1]

    [1] Explanatory Statement, p.52

22. Therefore, the Tribunal finds that cl.402.221 is not satisfied.

23. 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

24. The Tribunal affirms the decision not to grant the applicant a Training and Research (Class GC) visa.

    Alison Mercer
    Member