Yeo (Migration)

[2023] AATA 888

Yeo (Migration) [2023] AATA 888 (28 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yuan Sheng Yeo

CASE NUMBER:  1919634

HOME AFFAIRS REFERENCE(S):          BCC2019/2284239

MEMBER:Sean Baker

DATE:28 March 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Training (Class GF) Subclass 407 visa.

Statement made on 28 March 2023 at 10:28am

CATCHWORDS

MIGRATION – Training Visa (Class GF) visa – Subclass 407 (Training) – no approved nomination by a training and research sponsor – nomination review application withdrawn – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 57, 65, 140, 359
Migration Regulations 1994, Schedule 2, cl 407.214; rr 2.72, 2.75

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 3 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 27 April 2019. The delegate refused to grant the visa on the basis that the applicant was not named in a nominated program of occupational training. The applicant provided a copy of the delegate’s decision to the Tribunal.

3. The applicant appeared before the Tribunal on 27 March 2023 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether there is an approved nomination in place for the applicant.

6. Clause 407.214 as applicable in this case requires that (if the approved sponsor is not a Commonwealth agency) the sponsor has nominated a program of occupational training in relation to the applicant under paragraph 140GB(1) (b) of the Act and that that nomination has been approved under section 140GB of the Act on the basis of the criteria in regulation 2.72A.

7. In addition, this criterion also requires that:

   ·     the approval of the nomination has not ceased under regulation 2.75A; and

   ·     that either there is no adverse information known to Immigration about the sponsor or a person associated with the sponsor; or that it is reasonable to disregard any adverse information known to Immigration about the sponsor or a person associated with the sponsor.

8. In this case the applicant was identified in a Training Visa Nomination application, made by 3 Fat Monkeys Pty Ltd, on 27 April 2019. According to the Department decision, the nomination application was refused on 31 May 2019. This information was put to the applicant under s. 57 of the Act with an invitation for him to comment on the fact that they were not identified in an approved Training Visa Nomination, that met the criteria set out in regulation 2.72A. The applicant did not provide any further information.

9. The delegate then proceeded to refuse the applicant’s application on the basis that they did not have an approved Nomination.

10. The applicant was invited to a hearing. He requested a postponement dated 10 March 2023 on the basis that his agent had indicated they were no longer representing the applicant, he wished to find another agent, and sought two months adjournment. I decided not to grant this request because the hearing was on a single issue and I considered he had sufficient time to employ another agent if he wished to do so.

11. The applicant appeared at the hearing. He indicated he understood the basis on which his visa had been refused.

12. I put to the applicant, pursuant to s. 359AA, that 3 Fat Monkeys Pty Ltd had sought review of the nomination application refusal before the Tribunal, but had withdrawn this review on 29 August 2022 and the Tribunal had finalised the matter. I noted that the relevance of this information was that one of the criteria contained within subclass407, namely clause 407.214, required that the nomination had been approved by the Minister and had not subsequently been withdrawn. I explained that the consequence of this information was that, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal affirming the decision under review.

13. After I explained further, the applicant indicated he understood the information, relevance and consequence. He elected to respond straight away and said that he was shocked that the nomination review had been withdrawn as he had not been told this by his employer. He indicated he was still employed by them. He indicated he understood that this may mean his review would be affirmed. He said that he had been invited to apply for a further visa, and said that he would provide evidence of this after the hearing.

14. After the hearing, the applicant provided a State Nomination Application EOI form for the Government of Western Australia, Department of Training and Workforce Development. This appears to indicate that the applicant has begun the process of seeking a further visa. As I explained to him at the hearing, this has no direct bearing on this review.

15. The application was refused by the Department on the basis that there was no nomination in relation to the applicant. The refusal of the nomination application has been finalised before the Tribunal, as above. Having regard to the information before me, this indicates that there is no approved nomination in relation to the visa applicant. The applicant therefore cannot satisfy cl.407.214.

16. As this is the case, the Tribunal must affirm the decision.

    DECISION

17. The Tribunal affirms the decision not to grant the applicant a Training (Class GF) Subclass 407 visa.

    Sean Baker
    Member