Adhikari (Migration)

[2022] AATA 1013

Adhikari (Migration) [2022] AATA 1013 (7 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sriju Adhikari

REPRESENTATIVE:  Mr Rex Howard (MARN: 9251016)

CASE NUMBER:  1907328

HOME AFFAIRS REFERENCE(S):          BCC2019/592682

MEMBER:Penelope Hunter

DATE:7 March 2022

PLACE OF DECISION:  Sydney

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

Statement made on 07 March 2022 at 11:44am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Chef – subject of an approved nomination – no response to s 359A invitation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212

CASES
Hasran v MIAC [2010] FCAFC 40

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 12 March 2019 to refuse to grant the visa applicant a Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 22 February 2019. 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.

3. In this case, the applicant was seeking to satisfy the secondary criteria for the visa. The person seeking to satisfy the primary criteria for the visa was the applicant’s husband, Mr Rajaram Baral. The relevant visa application was made in the Short-term stream for Mr Baral to work in the nominated occupation of chef.

4. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.312 of Schedule 2 to the Regulations because the applicant was not a member of a family unit of a person who satisfied the primary criteria for the grant of a Subclass 482 visa.

5. The Tribunal received an application for review from both the review applicant and Mr Baral on 27 March 2019.

6. On 25 July 2019, the Tribunal received advice from the representative for the applicant and Mr Baral, that the applicant and Mr Baral had separated.

7. On 25 February 2020, the Tribunal accepted a Withdrawal of application form submitted by Mr Baral in respect of his application for review.

8. On 1 December 2021 the Tribunal sent an outreach letter seeking an address for the applicant. On 2 December 2021, the Tribunal received correspondence from the representative for the applicant that he did not have a further forwarding address for the applicant.

9. On 22 December 2021, the Tribunal wrote to the applicant via her nominated representative and the address set out in the visa application, pursuant to the provisions contained in s 359A of the Act inviting her to comment or respond to information that it considered would be a reason for affirming the decision under review. The information related to her separation and the withdrawal of the review application by Mr Baral. The Tribunal explained the relevance of the information, the applicant was informed that if the Tribunal relied on the information it may find that the applicant was not a member of the family unit of a person who satisfied the primary visa criteria for a Subclass 482 visa, and the applicant did not satisfy cl 482.312 of Schedule 2 to the Regulations which would be a reason or a part of a reason for the decision under review being affirmed. The applicant was further advised that, if comments or a response were not provided in writing by 5 January 2022 (or by an extended date if an extension of time was requested and granted), the Tribunal may make decision on review without taking further steps to obtain the information and the applicant would lose any entitlement that she might have had under the Act to appear before the Tribunal and give evidence and present arguments

10. The applicant has not provided any further information or submissions to the Tribunal by 5 January 2022 or as at the date of this decision. Further, no request for an extension of time was sought.

11. In these circumstances s 359C of the Act applies, and pursuant to s 360(3) of the Act, the applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if an applicant has no entitlement to a hearing then the Tribunal has no power to permit them to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has accordingly decided to proceed to a decision without taking further steps to obtain the comments or response.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the applicant satisfies cl 482.312.

14. The relevant visa application which included the applicant, and filed on 22 February 2019, identifies that Mr Rajaram Baral is the primary visa applicant and that the applicant is an accompanying member of his family unit. No claims have been made in respect of the applicant satisfying the primary criteria for the visa.

15. As set out in the decision of the delegate for the Minister and supplied to the Tribunal with the application for review, the grant of the Subclass 482 visa was refused to Mr Baral as he did not satisfy a primary criteria for the grant of the visa in cl 482.222 as the delegate was not satisfied that he was a genuine applicant for entry and stay as a short term visa holder as required by cl 482.222(a). Consequently, the applicant did not satisfy the secondary criteria in cl 482.312 of Schedule 2 which requires the applicant to be a member of the family unit of a person (the primary applicant) who has satisfied the primary criteria and is the holder of a Subclass 482 visa.

16. Although Mr Baral sought a review of that decision together with the applicant, as set out in the correspondence sent to the applicant pursuant to s 359A of the Act, the Tribunal accepted a Withdrawal form from Mr Baral on 25 February 2020. This means that the Department decision to refuse the visa for the primary visa applicant remains unchanged. As there is no evidence before the Tribunal that the applicant is a member of the family unit of a primary applicant who, having satisfied the primary criteria is the holder of a Subclass 482 (Temporary Skill Shortage) visa, the applicant does not satisfy cl 482.312(1) and the secondary criteria for the grant of the visa in cl 482.312 is not met as a whole.

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

    DECISION

18. The Tribunal affirms the decision not to grant the applicant Temporary Skill Shortage (Class GK) visa.

    Penelope Hunter
    Member