Singh (Migration)

[2019] AATA 2915

Singh (Migration) [2019] AATA 2915 (24 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Surya Prakash Singh

CASE NUMBER:  1611502

DIBP REFERENCE(S):  BCC2015/3317353 CLF2016/48211

MEMBER:Jade Murphy

DATE:24 June 2019

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 24 June 2019 at 1:11pm

CATCHWORDS
MIGRATION – Training and Research (Class GC) visa – Subclass 402 (Training and Research) – no response to s 359A invitation – not entitled to appear before the Tribunal – Occupational Trainee stream – occupational training not provided by the Commonwealth – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), rr 2.72I, 2.57, Schedule 2, cl 402.221

CASES
Singh v MIBP [2017] FCAFC 67

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 July 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 10 November 2015. 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 because the delegate was not satisfied that the applicant is intending to undertake occupational training by the commonwealth as specified in 402.221(1)(b), nor was the delegate satisfied that the applicant was identified in a nomination by a training and research sponsor or occupational trainee sponsor as specified in 402.221(1)(a).

5. On 7 May 2019 the Tribunal wrote to the applicant pursuant to s.359A of the Act and provided particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicant to comment on or respond to the information.

6. The particulars of the information were that the application for review of the related nominated position, made by Alliance Abroad International Pty Ltd was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the Tribunal.

7. It was explained in the letter to the applicant that this information is relevant to their review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination, if the occupational training is not provided to the applicant by the Commonwealth.

8. The invitation also specifically stated that the Tribunal must receive the applicant’s comments / response, or any request for an extension of time in which to do so, by 21 May 2019, or they would lose any entitlement they might otherwise have under the Act to appear before the Tribunal.

9. However, the applicant did not provide any comment or response within the prescribed period. Nor did the applicant, nor their representative, request an extension of time within the prescribed period in which to do so.

   The Applicant's Loss of the Right to a Hearing

10. The Tribunal notes that it sent the invitation under section 359A of the Act to the email address belonging to the applicant’s representative, Ms Pauline O’Loughlin, which was the last address for service provided by the applicant in connection with the application for review. The Tribunal notes that the migration agent’s registration has lapsed and a copy of the invitation under section 359A of the Act was also sent to the applicant’s last known email address on 7 May 2019.

11. The Tribunal received a delivery failure notification on 7 May 2019 in relation the applicant’s email address.

12. On 9 May 2019 the Tribunal sent a hard copy version of the invitation under section 359A of the Act to the last known postal addresses for both the migration agent and also the applicant. The invitation specifically stated that the Tribunal must receive the applicant’s comments / response, or any request for an extension of time in which to do so, by 3 June 2019, or they would lose any entitlement they might otherwise have under the Act to appear before the Tribunal.

13. However, as noted above, the applicant failed to provide their comments/response to the section 359A invitation within the prescribed period (extended to 3 June 2019). This means that subsections 359C(2) and subsection 360(3) apply to the applicant and they are not entitled to appear before the Tribunal. Under section 363A, the Tribunal does not have the power to permit a party to do something they are not entitled to do, unless a provision expressly provides otherwise. Section 360 does not provide otherwise.

14. In addition, the Courts have confirmed that where an applicant fails to respond to such a written invitation within the prescribed period, section 363A of the Act precludes the Tribunal from offering an applicant a hearing. In the case of Singh v MIBP [2017] FCAFC 67 the Court held that the operation of ss.359C(2), 360(3) and 363A has no temporal restriction and can take effect at any time before or after a hearing invitation has been issued and before a hearing takes place.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the applicant satisfies the requirements in 402.221 for the grant of a Subclass 402 visa.

    Sponsorship and nomination requirements

17. 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.

18. 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.

19. 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.

20. There is no evidence before the Tribunal, nor any submission to suggest that the applicant’s occupational training is to be provided by the Commonwealth. As a result the Tribunal is not satisfied that the applicant meets clause 402.221(1)(b).

21. As a result, the Tribunal has considered whether the applicant meets clause 402.221(1)(b), specifically whether the applicant is identified in a  r.2.72I approved nomination by a training and research sponsor or an occupational trainee sponsor, and whether the nomination is current.

22. As set out in the delegate’s decision and provided to the Tribunal on review, the applicant was identified in an occupational trainee nomination application made by Alliance Abroad International Pty Ltd on 10 November 2015. This nomination application was refused or withdrawn on 6 April 2016. On 14 May 2016 a further nomination was lodged by Alliance Abroad International Pty Ltd identifying the applicant as the nominee. This nomination was refused by a delegate for the then Department of Immigration on 7 July 2016.

23. On 27 July 2016 Alliance Abroad International Pty Ltd lodged an application for review with the Tribunal. On 3 May 2019 the Tribunal dismissed the review, and as a result affirmed the decision of the Department to refuse the nomination application.

24. As set out above, the applicant was invited to comment on or respond to this information. The Tribunal did not receive any response from the applicant. At the time of this decision, the applicant has not provided any information or response to indicate that the applicant has been identified in any other nomination by an approved Training and research sponsor or an Occupational Trainee sponsor. There is no evidence before the Tribunal that the applicant is identified in any nomination by an approved Training and research sponsor or an Occupational Trainee sponsor.

25. The Tribunal is not satisfied that the applicant meets the requirements set out in cl.402.221(1)(a), in addition to cl.402.221(1)(b).

26. Therefore, cl.402.221 is not satisfied. 

27. 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

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

    Jade Murphy
    Member