Abhishek (Migration)

[2024] AATA 569

Abhishek (Migration) [2024] AATA 569 (18 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Abhishek

Abhishek

Mrs Chhavi Sood
Miss Prakriti

Sood

CASE NUMBER:  2107452

HOME AFFAIRS REFERENCE(S):          BCC2020/2324173

MEMBER:Namoi Dougall

DATE:18 March 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visa.

Statement made on 18 March 2024 at 5:28pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Hairdresser – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212

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 19 May 2021 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 17 September 2020. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the primary visa applicant (the applicant) is seeking the visa in the Short-term stream to work in the nominated occupation of Hairdresser.

3. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.212(1) of Schedule 2 to the Regulations because Mr Abhishek Abhishek (the applicant) was not subject to an approved nomination as the nomination application of his sponsoring employer, Epic World Pty Ltd (the nominating business) was not approved on 12 July 2021.

4. The applicant appeared before the Tribunal on 18 March 2024 to give evidence and present arguments.

5. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the nomination identified in the visa application is approved, was made by a person who was an approved work sponsor at the time of approval, and has not ceased.

Requirement for an approved nomination

1. Clause 482.212(1) requires that the nomination identified in the visa application is approved, was made by a person who was an approved work sponsor at the time of approval, and has not ceased.

2. On 4 March 2024, the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting the applicant to comment on at the hearing on 18 Mach 2024 or respond to adverse information. The adverse information was that the applicant had applied for the Subclass 482 visa on the basis of a nomination of a position made by the nominating buisness and that on 22 February 2021, the Department had refused that nomination. The nominating business lodged with the Tribunal an application to review the delegate’s decision to refuse the nomination and the Tribunal affirmed the delegate’s decision on 13 October 2023. The letter also stated that the information is relevant to the applicant’s review as it indicates that the nomination of the position lodged by the applicant’s nominating employer and which the applicant relied on when lodging the visa application, has not been approved. If the Tribunal makes this finding, then it will also find that the applicant does not meet all of the requirements for the grant of a Subclass 482 visa, particularly cl.482.212.

3. On 10 March 2024, the applicant responded to the Tribunal’s letter of 4 March 2024 as follows:

   ·     The nominating business lodged three applications on the same day as follows; an applicant to be approved as a standard business sponsor; a nomination; and the applicant’s Subclass 482 visa application.

   ·     Two months later the SBS was approved. A copy was attached to the submission.

   ·     The applicant waited to be contacted by the Tribunal in relation to the nomination but when the Tribunal sent an email asking for them ‘present our case’ they did not received the email. However, the applicant admits that he received the email notifying g them of the Tribunal’s decision to affirm the Department’s decision.

   ·     The nominating business has now been approved as a SBS and the business is willing to nominate him. The applicant is still working for the nominating business. Attached to the submission was the applicant’s PAYG individual summary for the tax years ending 30 June 2021, 2022 and 2023.

   ·     Due to the stress of the situation, he has had heart problems and has been given a pacemaker. He has a small family, and it is hard to survive with medical conditions.

4. At hearing the Tribunal explained the above criteria, particularly cl.482.212 that requires the position to be the subject of an approved nomination was explained to the applicant comprehensively. The applicant confirmed that he understood these requirements. Further, the Tribunal explained that the nomination must be the one that was the subject of the declaration made as part of the current visa application. The applicant confirmed that he understood this requirement.

5. At the hearing, the Tribunal that as to the nomination application lodged by the nominating business being refused by the Department and that decision being affirmed by the Tribunal, the applicant cannot meet the requirements of cl.482.212.

6. The applciant stated that the file for the nomination and the SBS and the visa application were filed on the same day. The SBS was dealt with first, the nomination was dealt with first and the Department did not approve nomination not become the nominating business did not have authority to sponsor him.

7. The Tribunal explained that whatever the reasons was for the refusal of teh nomination application by the Department, the nomination application was refused the Tribunal affirmed that decision. No further action was by the nominating business. As such the applicant is not subject to an approved nomination. Even if the same business lodged another nomination that would not meet the requirement as the nomination has to be one that is identified in the visa application and that nomination needs to be approved and it has not been approved.

8. The applicant repeated the information provided by hm in his response and the Tribunal advised that on the information before the Tribunal he cannot met the requirements of cl.482.212. The Tribunal recommended that the applicant seek migration advice.

9. The evidence before the Tribunal is that the nomination in relation to the applicant in support of the Subclass 482 visa has been refused. That decision was reviewed by the Tribunal and the Tribunal affirmed the delegate’s decision on 13 October 2023, meaning that the decision refusing the nomination stands. As the applicant is not the subject of an approved nomination that can support his application for a Subclass 482 visa, it follows that the applicant does not satisfy the requirement in cl.482.212(1)(a).

10. As the first named applicant does not satisfy cl.482.212(1)(a) for the grant of a Subclass 482 visa, it follows that the second named applicant does not meet cl.482.312(1) for the grant of a Subclass 482 visa.

1. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

DECISION

1. The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visas.

Namoi Dougall
Member