Andikonar (Migration) - [2023] AATA 548

Andikonar (Migration) [2023] AATA 548 (28 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sekar Andikonar
REPRESENTATIVE:  Mr Walson Mathew (MARN: 1460591)
CASE NUMBER:  1914591
HOME AFFAIRS REFERENCE(S):          BCC2019/2003297
MEMBER:Alan McMurran
DATE:28 February 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Skill Shortage (Class GK) visa.

Statement made on 28 February 2023 at 11:14am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Chef – genuine position and intention to perform occupation – ceased employment with sponsor – workplace dispute – adjournment granted to seek a new nomination – Tribunal declined indefinite adjournment of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 363
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 7 June 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 17 May 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).
The applicant, Mr Sekar Andikonar, is a 51 year-old citizen of the Republic of India. The applicant applied for the visa on 19 April 2019 to work in the nominated occupation of Chef (ANZSCO 351311).
At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage) (“TSS”) visa. 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. There are no family members with this application.
In this case, the application seeks the visa in the Medium-term stream to work in the nominated occupation for a term of 1 year. The applicant was nominated by Dakshin Indian Restaurant Pty Ltd t/as Dakshin Restaurant (the sponsor). The business registration is at Parramatta in Sydney, where the sponsor’s principal place of business is located.
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(2) of Schedule 2 to the Regulations because the delegate formed the view that the applicant did not have a strong incentive to return to India because of the economic circumstances in that country. The delegate made reference to the genuine temporary entrant (‘GTE’) policy guidelines in forming that view. The delegate concluded that the applicant was not a genuine temporary entrant and further, that the applicant’s intention was not to work ‘temporarily’ given the length of time already spent in Australia since 2013. The delegate concluded that the applicant was using the Temporary Skill Shortage visa program simply to further his stay.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
Tribunal process
The applicant was invited to a hearing as required by s 360(1) of the Act. The hearing invitation includes an invitation to provide submissions and documentation to be relied upon for the review, at least 7 days before the hearing, and information how to submit any accompanying documents. The applicant responded to the invitation but made no submissions and provided no further information before the hearing.
The applicant appeared by video before the Tribunal on 29 August 2022 in accordance with the Tribunal’s (then) pandemic Practice Direction, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages. The applicant was represented in relation to the review by a registered migration agent, appointed 5 December 2019, who also made submissions.
Following the hearing, the Tribunal adjourned the hearing process and agreed to defer any further consideration, pending a response from the applicant to issues raised during the hearing as outlined below in the background summary.
A second hearing was scheduled on 16 February 2023 by telephone, for the purpose of the applicant updating the Tribunal and making any further submissions. The applicant appeared on that occasion with his representative and was assisted by an interpreter in the Tamil and English languages.
376 Certificate
The Department file provided to the Tribunal included a non-disclosure certificate under s376 of the Act. Two matters arose from the copy provided with the Department file. Firstly, the certificate, dated 9 August 2022, did not contain a verification of a typed signature of the certifier, that the certificate had been validly signed using an electronic signature. The Tribunal finds therefore that it is not a valid certificate for that reason.
Secondly, the Act allows the Tribunal a discretion under s 376(3) as to whether or not information the subject of the certificate may be disclosed. The Tribunal also considered that provision, noting that in this instance, the certificate referred to concerns raised about the sponsor, but stating that there “are no current investigations”.
Given that there was no concern raised by the Department with this merits’ review application or brought to the Tribunal’s attention concerning either the sponsor or the applicant and which touch upon consideration of this visa review, the Tribunal has disregarded the certificate entirely and in the exercise of its discretion not raised with the applicant any matter said to be of concern arising from the issue of an invalid certificate.
Background
The applicant is married with two adult children. He states his family all live in India, he has no relatives in Australia, and contends he came to Australia to work in order to support them. He arrived in Australia on 11 May 2013 on a Business (Short Stay) Subclass 456 visa (visa class since closed), granted on 25 February 2013. The applicant obtained a Subclass 457 Temporary work visa on 1 September 2014, to work as a Chef, valid for 4 years until 30 August 2018. The applicant has not returned to India since arrival in Australia and has remained on Bridging visas since August 2018, currently with no conditions.
According to his submitted TSS visa application, the applicant had been employed in India since March 2003 for the Indian restaurant chain, Anjappar Chettinad. This included a period of study and training as a hotel manager and caterer and work in Singapore for that employer. On arrival in Australia, the application states that he continued to work for the same employer as an executive chef for Chettinad Cuisines Pty Limited t/as Anjappar Chettinad Indian Restaurant in Sydney, from 2 September 2014 until 2017.
The applicant’s given history from the end of 2017 until the time of the visa application in 2019 is not entirely clear. The applicant appeared to struggle giving his answers at the hearing, not with interpretation, but with recalling exactly what had happened, but It seems however, that after leaving Anjappar, the applicant commenced working for the sponsor, Dashkin Indian Restaurant Pty Limited sometime in 2018. The sponsor having agreed to nominate him, the sponsor’s nomination was lodged on 13 December 2018 and approved on 20 February 2019.
At the hearing, the applicant claimed he left that position late in 2019, while this review was still pending, and then moved to Melbourne in January 2020. When asked why he left his employment with the sponsor, he claims a workplace dispute had arisen in 2019, after the visa application was lodged on 19 April 2019. The applicant sought advice about his employment issue from his current representative and decided he could no longer work for the nominator. He decided to go to Melbourne as he liked the location and the opportunity to work there. He said at the time he left the sponsor’s employment, he had been working at Parramatta, and then temporarily in a restaurant at Pendle Hill in Sydney before going to Melbourne but could not remember the name of that other Sydney restaurant.
The Tribunal asked about the current application and whether he intended to take up employment again with the sponsor. The applicant stated he would not be returning to Sydney to work for the sponsor because of the employment dispute which has not been resolved. He said the dispute concerns an unfair claim by the employer that his family owes them money in India which he must repay as the responsible family member. The Tribunal found that the applicant’s explanation about his dispute with the sponsor was difficult to follow, and that no documents were available to support his contentions. The applicant said that, in any event, he had found a new employer in Melbourne in 2020, where at the time of the hearing in August 2022, he had been working for more than 2 years while on his Bridging visa. He said this new employer, Emporis9 Telecom Pty Limited t/as Chola’s Indian Restaurant, had agreed to sponsor him to work as a Chef at premises at Cranbourne West in Melbourne’s suburbs, on a salary of $60,000 per annum. At the time of the hearing (August 2022), no steps had been taken to lodge a further nomination application by the second sponsor.
The Tribunal asked if the applicant had brought these matters to the attention of the Department while waiting for this review. He was not aware there had been any contact with the Department, and his representative stated that the applicant had simply been waiting for the review, and which due to regrettable but unavoidable delays, has taken more than three years to the time of hearing. The Tribunal asked the applicant that in light of his clear intention not to take up the current sponsorship, what he anticipated the Tribunal should do. The Tribunal explained its concerns to the applicant under s 359AA of the Act and gave particulars that where the applicant had stated his clear intention was not to perform the nominated occupation, and that the position associated with the nominated occupation no longer existed since he had left the employment, it could not be found at the time of the Tribunal’s decision that the intention to perform the occupation was genuine, or that the position associated with the nominated occupation is genuine. The applicant was asked to respond and given the opportunity to discuss the issue with his representative. The Tribunal adjourned for a short period to enable the applicant to have a confidential discussion with his representative during the hearing.
On resuming, the representative confirmed that the applicant wanted further time for the applicant to become the subject of a further approved nomination and to make a related visa application and asked for the hearing to be adjourned for that purpose. After a further short discussion, the Tribunal agreed to adjourn the hearing for a further date to be arranged and gave directions for the applicant to advise the Tribunal as to progress and to make any further submissions. The Tribunal acknowledged that in doing so, it accepts that the applicant is highly skilled and trained as an Indian-cuisine chef and with significant experience both overseas in India and since 2014 in Australia, and that the occupation is sought after with a recognised skill shortage for the occupation of Chef. The Tribunal accepted that it was reasonable and fair to provide the applicant with further time to obtain a visa for the occupation from another willing sponsor.
A nomination application for the applicant to continue working at the Cranbourne restaurant in Melbourne, by the new sponsor, Emporis9 Telecom Pty Limited t/as Chola’s Indian Restaurant, was lodged on 14 November 2022, naming the applicant for the TSS visa, and for the occupation of Chef. The application was prepared and lodged online by another ‘authorised contact’, the applicant’s Indian representative, who was noted on the application form at a contact address in Chennai, India. The Tribunal has had no communication with this representative and has contact information only for the applicant’s Australian representative, who was appointed as the representative in these proceedings on 5 December 2019, and who has appeared for this review. The Australian agent says he did not prepare or lodge the new application and has no responsibility for its progress, which is a matter between the applicant and his Indian agent. The applicant had not yet lodged his related visa application, saying he was awaiting the outcome of the nomination and would eventually have to go offshore to do so as he was the subject of a refused visa.
The Tribunal was informed by the Department on 20 January 2023, that the nomination application by the new sponsor had been refused on 18 January 2023. The Department’s reasons for refusal related to a failure to meet the advertising requirements for the position (Labour Market Testing, or LMT).
The Tribunal thereupon invited the applicant to a second hearing on 16 February 2023, to continue the review.
The resumed hearing –16 February 2023
The applicant attended by telephone with his Australian representative and an interpreter in the Tamil and English languages. No difficulties with interpretation or with the hearing process were raised or detected by the Tribunal.
On 31 January 2023, the Tribunal had sent a 359A letter to the applicant, noting particulars of the adverse information were that there was no approved nomination by the second sponsor for the applicant. The applicant was asked to respond by 14 February 2023.
On 14 February 2023, the applicant’s Australian representative responded and submitted copies of the following:
a.    The nomination application lodged 14 November 2022
b.    Company Tax Return for 2021 for Emporis9 Telecom Pty Limited
c.     ASIC registration for Emporis9 Telecom Pty Limited
d.    ANZ Bank statements for Emporis9 Telecom Pty Limited to September 2022
e.    BAS for Emporis9 Telecom Pty Limited for Jul 2020 to Sep 2021
f.   Payslip for the applicant for super contributions from Oct to Dec 2021
g.    Acknowledgement of a second nomination application lodged 13 February 2023 by Emporis9 Telecom Pty Limited
h.    Approval of a nomination by Emporis9 Telecom Pty Limited for another employee dated 20 January 2023
i.   LMT uploaded information created 10 Sep 2022 for Chef position for Emporis9 Telecom Pty Limited
j.   Submission from sponsor on occupation caveat
k.     FWO Restaurant Industry Award at Nov 2021
l.   Short submission from representative dated ‘27 January 2022’ (read as 2023).
The submission which accompanied the documents states by way of explanation:
To AAT Dear Sir/Madam
Re: AAT Case number: 1914591 - MR SEKAR ANDIKONAR
One of the reasons for not being able to send the documents earlier was that another Migration Agent was doing the application for Mr Sekar Andikonar. I had not been able to receive the documents which were with the other Migration Agent based overseas.
Please see attached the new Nomination application, acknowledgement and the supporting documents that were lodged for the Nomination.
The first Nomination was refused due to the Labour Market Testing shortfall. But that was addressed before lodging the second Nomination of Mr Andikonar.
The same company also has lodged another Nomination for the same occupation for another client and the Nomination was approved recently.
Please see attached the application, acknowledgement and all supporting documentation for the Nomination for Mr Sekar Andikonar.
At the resumed hearing, the Tribunal asked the applicant what he now wanted the Tribunal to consider. The applicant said he continues to work for the second sponsor in Victoria where he has now been working for 3 years, and that he intends to go offshore to meet with his Indian representative, once he obtains a Bridging visa with travel rights, and in order to lodge his related visa application for the new nomination for the occupation.
The Tribunal asked why he had not already sought to do so before the resumed hearing. His representative responded that he would now do so. The Tribunal put to the applicant why he had not applied already for the Bridging visa so as to enable him to go offshore to make the visa application, and then return to work in Australia, pending the Department decision on the second nomination application by the second sponsor. The Tribunal proposed that these proceedings could be finalised as there was no prospect of success of his visa application for the original sponsor, Dakshin Indian Restaurant Pty Ltd t/as Dakshin Restaurant, his employment having ceased when he voluntarily terminated his employment in about November 2019. The applicant was already on a Bridging visa and can await the outcome of the second nomination by the new sponsor just lodged on 13 February 2023 before the resumed hearing The Tribunal pointed out that further delay did not appear warranted. The applicant was asked to respond.
The Australian representative made the submission that he would lodge a Bridging visa application to begin the process to enable the applicant to travel to India and return, and to be able to lodge his visa application with the assistance of his Indian representative. The agent submitted the related visa application could not be lodged onshore for the new nomination due to the applicant’s current refused visa application, and that an approved Bridging visa B with travel rights was necessary for the applicant to be able to return, if and when he departs.
The Tribunal directed the applicant to lodge the Bridging visa application and confirm with the Tribunal if it could be done that day, which the agent confirmed. The Tribunal further directed the applicant to inform the Tribunal by 23 February 2023 of progress with his Bridging visa and if further time was required to assist him to facilitate his proposed travel.
On 16 February 2023, following the hearing, the agent confirmed that the applicant’s Bridging visa B application had been lodged and provided the Tribunal with a copy.
On 24 February 2023, the Tribunal received the following letter from the agent:
Re: Case #1914591 - Mr Sekar Andikonar Bridging visa update
We have provided on 16th February the details of the application for a Bridging visa B for Mr Sekar Andikonar.
Unfortunately, the client’s Bridging visa B was refused. The BVB Refusal letter is attached.
The client wants to apply again for another Bridging visa B for travel overseas. The client requests a letter from the AAT to add to his next application for a Bridging visa B, so he may be able to get a Bridging visa B, to allow him to travel overseas.
As this client has another Agent, who speaks his language, working for him in India, and is handling most of his work for his next Nomination and visa application, I request withdraw of my representation. I hereby also request all communication be made directly with the client. Please see attached Form M6
On 27 February 2023, the Tribunal responded as follows:k
Dear Mr Andikonar
Response to bridging visa update – Mr Sekar Andikonar
I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a GK – Temporary Skill Shortage (Class GK) visa.
Your representative’s letter dated 24 February 2023 confirmed that you are still not subject to an approved nomination, as noted in the Tribunal’s previous letter dated 31 January 2023. Your representative’s letter also confirmed that your Bridging Visa B application was refused. Please note the Tribunal is unable to provide you with a letter of support for the purpose of a future Bridging Visa application as requested in your representative’s letter.
Considering the above information, the Tribunal does not see that any further delay is warranted as we have no information indicating that you expect any further application will succeed.
The Tribunal intends to now finalise the matter and will consider any further submissions he may wish to make up to the time of its decision which could now be at any time.
In your representative’s letter dated 24 February 2023 Mr Mathew noted that he wished to withdraw his representation. To withdraw or appoint a representative you must complete and sign the attached Appointment of Representative / Appointment of Authorised Recipient form. Please complete and return the form to the Tribunal. Until the completed form is returned, the Tribunal will continue to send correspondence to your current representative, Mr Mathew.
If you have any questions, please email [email protected], or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.

The Tribunal has not received any further communication.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant can meet the Common criteria requirements in sub-paragraph 482.21 and the criteria for the Medium-term stream in sub-paragraph 402.23. If any one criterion is not met, then the Tribunal does not need to review remaining criteria.
The delegate purported to determine the issue against the criteria in cl 482.212 for the Medium-term stream (set out below). The delegate found against the applicant on the basis of Department Policy, that the genuine temporary entry (“GTE”) requirement was not met, and “consequently clause 482.212 is not met”.
The GTE requirement is not a consideration in cl 482.212 and is in fact set out in in cl 482.222 for the Short-term stream. The genuine temporary entrant criteria in cl 482.222 for the Short term stream is not a relevant consideration in an application for the Medium-term stream. On review, the Tribunal must consider all the information afresh and consider the application against the relevant criteria in sub-paragraph 482.21.
The Tribunal has taken into account the applicant’s submissions and concerns outlined above. The Tribunal has also noted that the applicant has conceded that he can no longer meet the Common criteria in cl 482.212(2), his employment with the sponsor having ceased and he having no intention to return to it, and where the regulation relevantly includes the following:
485.212
(2) Both of the following apply:
(a) The applicant’s intention to perform the nominated occupation is genuine;
(b) The position associated with the nominated occupation is genuine.
Genuine position and intention to perform occupation
Clause 482.212(2), as set out above, requires that the applicant’s intention to perform the nominated occupation is genuine and the position associated with the nominated occupation is ‘genuine’. These are not defined terms in the Act or Regulations and will depend upon the factual matrix and context established upon review.
On 19 April 2019, the applicant lodged the related visa application for the sponsor’s nomination. On 17 May 2019, the visa application was refused for the reasons set out above at paragraph 5. The applicant lodged this application for review on 7 June 2019. The applicant then left employment with the sponsor Dakshin Indian Restaurant Pty Ltd t/as Dakshin Restaurant on or about November 2019 and in about January 2020, travelled to Melbourne to take up employment with his new sponsor Emporis9 Telecom Pty Limited t/as Chola’s Indian Restaurant in or around February 2020. The applicant contends that the employment is terminated with the sponsor, that he now works for his new sponsor, and has no intention to resume employment with the sponsor for the nomination related to this review of his visa application.
The Tribunal finds therefore on the available information that the applicant no longer has at the time of decision a genuine intention to perform the occupation related to the sponsorship. The Tribunal is satisfied that the position associated with the nomination of the applicant and related to the sponsor is no longer ‘genuine’.
For these reasons the requirements of cl 482.212(2) are not met.
As one of the essential requirements for the visa is not met, the decision under review must be affirmed.
Adjournment of the proceedings
The Tribunal has set out above the background to the applications and the current status. Section 363(1)(b) empowers the Tribunal to adjourn the review from time to time, in the exercise of its discretion. The exercise of that discretion requires the Tribunal to act with legal reasonableness, and with an intelligible and rational justification.[1]
[1] Minister for Immigration and Border Protection v Haq (2019) 267 FCR 513 at 522 per Griffiths J. See also Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 (11 May 2022) at 78 Edelman J (dissenting)
The applicant is currently waiting on a Bridging visa for the outcome of a second nomination application by his current employer, who is an approved sponsor, lodged on 13 February 2023. The applicant has not yet lodged a related visa application which is being dealt with by his agent in India. The Tribunal has no further information about the prospects of the latest nomination, which the applicant says must have some prospects because another nomination for a similar position by the same sponsor was recently approved. The Tribunal is unable however to compare the applications or to consider that submission as the circumstances of the other approved sponsorship and the particular applicant concerned are unknown and the Tribunal gives this submission no weight.
The applicant has been unsuccessful in an application for a Bridging visa B with travel rights, to enable him to travel to India to confer with his agent there and lodge a visa application, see his family, then return to Australia, and upon which Bridging visa B he could continue to work, pending any further application or review under consideration. His current Bridging visa also entitles him to remain while the second nomination is under consideration, but according to his representative, he will have to leave the country at some point to lodge his related visa application.
The Tribunal is of the view that it is not appropriate to wait indefinitely for the applicant to obtain a successful nomination and visa outcome. The process involves two applications, usually dealt with together, being for the nomination and for the visa. The applicant has delayed filing his related visa application as he must go offshore to do so. He has been unsuccessful in obtaining a relevant Bridging visa B to enable him to travel. He seeks further time to enable him to lodge another Bridging visa B application and to travel to India for advice in that regard. The Tribunal has considered that request.
The Tribunal considers that the applicant has had significant time to prepare his case and meet his personal circumstances. He did not attempt to secure approval from his current employer and sponsorship for the new position while waiting for nearly three years for this review, and which he was aware could not succeed. He has been on notice he has not had a visa approval since refusal by the Department in May 2019 of the visa decision, and then himself having voluntarily left his sponsor in November 2019 with the intention not to resume the employment. He chose not to advise the Department at the time of his change in circumstance and employer. That was for reason undoubtedly that the applicant sought to extend his stay with work rights for as long as possible.
The applicant has sought advice throughout from an experienced local agent, as well as a representative he has obtained in India, and was aware that his current review could not succeed. Notwithstanding, the applicant waited until after the first Tribunal review hearing in August 2022, to seek another sponsorship approval. The applicant did not make any related visa application. The Tribunal agreed to await the outcome of that application which was refused on 18 January 2023. The new sponsor has not sought review of the refusal, but instead has lodged a further nomination application on 13 February 2023, not yet determined. The applicant again has not made any related visa application for the latest nomination, which should be dealt with together with the nomination and which applications are “inextricably linked”.[2]
[2] KC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 4 per Rares J at par 40
There is a wealth of court decisions with authority for the proposition that the Tribunal is not required to indefinitely defer its decision-making processes.[3] The individual circumstances in each case however where such consideration is required will of course differ. The Tribunal has considered the circumstances as set out above in these reasons.
[3] See Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 and Minister for Immigration and Citizenship v Li [2013] HCA 18;
In this instance, no further formal adjournment request has been made. The Tribunal has considered whether it should exercise its discretion to continue to adjourn this decision under s 363(1)(b). The Tribunal has no confirmed information as to when the steps proposed by the applicant to bring his new visa application may occur, and where the applicant has been refused a Bridging visa B (not subject to review), and where there is no information as to whether the prospects of a further such application may succeed, the Tribunal finds that little weight can be given to considering a further adjournment. Finally, the applicant cannot use the new nomination application(s) as a means for the grant of this visa, and it would be futile for this pending visa approval to await the outcome of other nomination application(s).
The Tribunal has already noted that the Department has refused the latest nomination application which is not subject to review but is replaced with yet a further application by the new sponsor, with no identifiable timetable or indication of prospects, and which will be outstanding for an indefinite period.
The Tribunal has considered whether the personal circumstances of the applicant in this instance warrant further consideration, other than what has been expressly referred to already.[4] No submissions have been made in that regard. The applicant himself says he is anxious to return to India to see his family, not having been home since 2013 and has submitted that he wants to see his Indian representative, and in light of those facts, it seems unlikely that as the applicant will be returning to India, regardless, he will be unduly affected by this outcome.
[4] Gowda v MIBP [2016] FCCA 3491 per Riethmuller J at par 11
The Tribunal is not persuaded that any further adjournment is warranted.
DECISION
The Tribunal affirms the decision not to grant the applicant a Temporary Skill Shortage (Class GK) visa.
Alan McMurran
Member