Wibowo (Migration)

[2019] AATA 2024

Wibowo (Migration) [2019] AATA 2024 (2 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Amanda Putri Wirastari Wibowo

CASE NUMBER:  1713263

HOME AFFAIRS REFERENCE:                ASB2017/2949

CLF2017/46130

MEMBER:Lilly Mojsin

DATE:2 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 02 May 2019 at 2:51pm

CATCHWORDS
MIGRATION – Training and Research (Class GC) visa – Subclass 402 – Occupational Trainee stream – nomination expired – traineeship position withdrawn – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140GB
Migration Regulations 1994, rr 2.57, 2.72I, Schedule 2, cls 402.214, 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 1 June 2017 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 November 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). 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 review, 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 finding that the applicant did not meet cl.402.214 of Schedule 2 to the Regulations because the applicant was not identified in an approved nomination by a Training and Research sponsor, or an Occupational Trainee sponsor, that met the criteria set out in r. 2.72I.

5. The applicant appealed that decision to this Tribunal, annexing a copy of the Department decision to the application for review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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.

8. 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.

9. The primary issue before the Tribunal is whether the applicant is the subject of an approved 402 nomination that has not ceased.

10. A 402 nomination was approved for the Host Trainee company Ausphin on 26 October 2015 and the approved 402 nomination expired 26 October 2018.

11. On 7 April 2017 the Host Company withdrew the traineeship position.

12. During the hearing the applicant explained that she had been the victim of her sponsor. She commenced employment on 31 October 201, paid her medicals but suffered bad verbal and mental abuse. She quit her job and was promised she would be helped to find a new trainee company. This did not eventuate. The applicant opined that they took her money but did not find her a job.

13. The Tribunal explained that the 402 visa class closed on 19 November 2016 as documented on the department's website[1].

    [1]

14. As the Host Trainee Company withdrew its nomination on 7 April 2017, the applicant is not able to satisfy an essential requirement of the visa, which requires her to be identified in a nomination of an occupation or activity approved under s.140GB of the Act, and that the approval of the nomination has not ceased.

15. The applicant does not suggest that occupational training was not to be provided to her by the Commonwealth. Therefore, the Tribunal finds that the applicant is not identified in a r.2.72I-approved nomination by a training and research sponsor or an occupational trainee sponsor that has not ceased.

16. The Tribunal finds cl. 402.221 is not satisfied.

17. 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

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

    Lilly Mojsin
    Member