Wilson (Migration)

[2022] AATA 3713

Wilson (Migration) [2022] AATA 3713 (27 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Adam Stewart Wilson
Ms Megan Margaret Gray

REPRESENTATIVE:  Mr Dimitrios Katsaros

CASE NUMBER:  1915079

HOME AFFAIRS REFERENCE(S):          BCC2019/1295657

MEMBER:Vanessa Plain

DATE:27 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Training (Class GF) Subclass 407 visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 407 visa:

·cl. 407.214(b) of Schedule 2 to the Migration Regulations 1994

The Tribunal remits the application for a Training (Class GF) Subclass 407 visa for reconsideration, with the direction that the secondary applicant meets the following criteria for a Subclass 407 visa:

·cl. 407.311 of Schedule 2 to the Migration Regulations 1994

Statement made on 27 October 2022 at 1:10pm

CATCHWORDS
MIGRATION – Training (Class GF) visa – Subclass 407 (Training) – subject of approved training nomination – refusal of related nomination application set aside on review – member of family unit – combined hearing of nomination and visa reviews – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB(1)(b)
Migration Regulations 1994 (Cth), r 2.72A, Schedule 2, cls 407.214(b), 407.311

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 22 May 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 14 March 2019. The delegate refused to grant the visa on the basis that the applicant did not meet cl.407.214(b) because the nomination application in relation to the applicant, lodged by the sponsor, Veludo Bar Pty Ltd, was refused.

3. The secondary applicant’s application was refused on the basis that the primary applicant did not meet cl 407.214(b).

4. The applicant appeared before the Tribunal on 26 October 2022 to give evidence and present arguments.  Mr Follacchio, director of the sponsoring business, also appeared before the Tribunal on 26 October 2022 via video link to give evidence and present arguments in the related case (AAT case no. 1910848).  The related matters were heard concurrently in a combined hearing. 

5. The applicant was represented in relation to the review by his representative, Mr Katsaros.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the requirements of cl.407.214(b) which requires that there is an approved nomination of a program of occupational training in relation to the applicant.

8. The applicant is the subject of a nomination application lodged by the sponsor Veludo Bar Pty Ltd.  It had been refused by the delegate however the Tribunal on 27 September 2018 approved the nomination, identifying the applicant as the nominee (see AAT case 1910848). The applicant is now the subject of a nomination of a program of occupational training in relation to the applicant under s.140GB(1)(b) of the Act that has been approved on the basis of the criteria in r.2.72A.

9. For these reasons the requirements of cl.407.214(b) are met.

10. The Tribunal has had regard to photographic evidence submitted by the applicants to substantiate the contention that they have been in a de facto relationship since 2017.  The documentation provided is extensive and covers a period of time between 2017 and the present which clearly establishes that the applicants are in a committed relationship.  The Tribunal is satisfied on the basis of this evidence that the secondary applicant meets cl 407.311.

11. Given the findings above, the appropriate course is to remit the applications for the visa to the Minister to consider the remaining criteria for a Subclass 407 visa.

    decision

12. The Tribunal remits the application for a Training (Class GF) Subclass 407 visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 407 visa:

    ·cl.407.214(b) of Schedule 2 to the Regulations.

13. The Tribunal remits the application for a Training (Class GF) Subclass 407 visa for reconsideration, with the direction that the secondary applicant meets the following criteria for a Subclass 407 visa:

    ·cl.407.311 of Schedule 2 to the Regulations

    Vanessa Plain
    Member