Appolloni (Migration)

[2022] AATA 3460

Appolloni (Migration) [2022] AATA 3460 (16 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Davide Appolloni

CASE NUMBER:  2107477

HOME AFFAIRS REFERENCE(S):          BCC2020/2880641

MEMBER:Alison Mercer

DATE:16 September 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 16 September 2022 at 9:34am

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – occupation of Hairdresser – decision to cancel approval as a standard business sponsor – no Tribunal-reviewable decision – sponsored by an approved sponsor – approved nomination of an occupation – no jurisdiction   

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 65, 140, 338, 347, 411, 412
Migration Regulations 1994, Schedule 2 cl 4582.212, rr 2.75, 4.02

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 26 May 2021 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 24 December 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 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 of Schedule 2 to the Regulations because he was not the subject of an approved nomination by an approved standard business sponsor. This was because the nomination of him by his Australian employer, KSM Barber Pty Ltd, had been refused by the Department.

4. The Tribunal received a review application from the applicant on 8 June 2021, which was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mrs Jaleh Johannessen, as his representative and authorised recipient for correspondence.

5. On 11 June 2021, the Tribunal wrote to the applicant via his agent to advise that it had formed a preliminary view that it had no jurisdiction to review the decision to refuse the applicant a subclass 482 visa because, at the time that of the Department’s refusal decision on 26 May 2021, he was not the subject of an approved nomination, and nor was there a pending nomination or sponsorship approval review, and thus s.338(2)(d) of the Act was not met. The applicant was invited to provide a response to this information by 25 June 2021.

6. On 11 June 2021, the applicant’s agent submitted that the Tribunal should find that it had jurisdiction in this matter, as the applicant’s nominating employer had lodged an application for review of the Department’s decision to cancel its approval as a standard business sponsor, so there was a pending review relating to sponsorship approval at the relevant time.

7. On 15 November 2021, the Tribunal wrote again to the applicant via his agent to advise him that a review relating to a Department decision to cancel an employer’s approval as a standard business sponsor was not one of the decisions listed in s.338(2)(d) and thus the Tribunal remained of the view that it did not have jurisdiction to review the Department’s decision to refuse the applicant a subclass 482 visa. It invited the applicant to respond to this information by 29 November 2021.

8. On 29 November 2021, the applicant appointed a new migration agent, Ms Radikha Reddy, as his representative and authorised recipient for correspondence. Ms Reddy requested an extension of time to respond and this was granted.

9. On 4 January 2022, the applicant’s agent responded to argue that the applicant’s former agent should have advised him to withdraw his visa application when his employer’s sponsorship approval was cancelled. She noted that the applicant now had a new sponsor/employer.

10. On 8 June 2022, the applicant advised that his agent was no longer acting for him, and he wished to receive correspondence directly.

11. On 29 August 2022, the Tribunal wrote again to the applicant in the following terms:

    …

    Background

    After you lodged your review application with the Tribunal on 8 June 2021, we wrote to you on 11 June 2021 to advise that a preliminary view had been taken that the Tribunal had no jurisdiction to review the decision to refuse you a subclass 482 visa, because at the time that the Department refusal decision was made, you were not the subject of an approved nomination, and there was no pending review with the Tribunal in respect of a decision by the Department to refuse to approve a nomination made by your employer, KSM Barber Pty Ltd, nor of a decision to refuse to approve KSM Barber Pty Ltd as a standard business sponsor.

    We noted that it therefore appeared that you did not meet s.338(2)(d) of the Migration Act 1958 (the Act) and therefore the Tribunal did not have power to review the decision to refuse you a visa.

    In your response dated 11 June 2021, your agent argued in summary that:

    ·the Tribunal should take a beneficial view of the jurisdictional issue as KSM Barber Pty Ltd had applied for review of the decision to cancel its sponsorship approval with the Tribunal [on 5 April 2021] prior to the refusal of your visa application on 26 May 2021; and

    ·thus, there was a pending review application with the Tribunal in respect of the therefore the Tribunal should find that it had jurisdiction to review the decision to refuse you a subclass 482 visa.

    On 15 November 2021, the Tribunal wrote again to you via your agent to advise that its preliminary view was that a review of a decision to cancel an employer’s approval did not fall within the classes of decision set out in s.338(2)(d) of the Act, which prescribes in what circumstances the Tribunal can review a decision to refuse an applicant a subclass 482 visa. This was because the review application lodged by KSM Barber Pty Ltd with the Tribunal on 5 April 2021 related a decision to cancel its sponsorship approval pursuant to s.140M of the Act, and not to a decision to refuse to approve a sponsor pursuant to s.140E, as required by s.338(2)(d)(ii). The Tribunal invited you to respond to this information.

    On 29 November 2021, you appointed a new migration agent and they sought an extension of time to respond to the above letter. This was granted.

    On 4 January 2022, the Tribunal received your response, in which your agent argued that your previous agent should have advised you to withdraw your visa application when your sponsor’s approval was cancelled, and that you now have a new employer who is willing to sponsor you.

    Since then, new information has arisen; namely:

    on 5 August 2022, the Tribunal (differently constituted) found that it had no jurisdiction to review the sponsorship cancellation decision relating to your employer as KSM Barber Pty Ltd had withdrawn its review application from the Tribunal on 4 August 2022;

    accordingly, there is currently no decision under review with the Tribunal in relation to KSM Barber Pty Ltd’s approval as a standard business sponsor or its nomination of you, and there is no evidence that it is an approved standard business sponsor or that you are the subject of an approved nomination by KSM Barber Pty Ltd. Nor is there any evidence that KSM Barber Pty Ltd was an approved sponsor, or that you were the subject of an approved nomination by KSM Barber Pty Ltd, at the time the Department refused to grant you a visa on 26 May 2021.

    Accordingly, your review application still appears to be invalid. However, this is a matter which must be determined by a Member.

    …

12. The Tribunal invited the applicant to provide a response to this information by 12 September 2022. However, the applicant did not do so, and the Tribunal has received no further communication from him to date.

13. For the following reasons, the Tribunal has decided that it does not have jurisdiction in this matter.

    CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

14. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (Cth) (the Act) if an application is properly made under s 347 or s 412 of that Act, or in limited circumstances not relevant to this application, s 29 of the Administrative Appeals Tribunal Act 1975 (Cth).

15. Sections 338 and 411 of the Act and reg 4.02(4) of the Migration Regulations 1994 (Cth) set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal and the circumstances in which they are reviewable.

16. For onshore visa applications, such as the current one, a decision to refuse to grant a subclass 482 visa is reviewable in certain circumstances as set out in s 338(2) of the Act. Paragraphs (a) to (c) of s 338(2) apply in all cases, requiring that the visa could be granted to a person in the migration zone, and the person made the application in the migration zone after being immigration cleared (which would always be the case for a valid onshore subclass 482 visa application). The Tribunal is satisfied that these conditions are met in this case.

17. However, section 338(2)(d) imposes an additional requirement for refusals of certain prescribed temporary visas to be reviewable (including subclass 482 visas).[1] There are four alternative requirements; however, the fourth is only applicable if it is not a criterion for the grant of the visa that the non-citizen is identified in an approved nomination that has not ceased under the Regulations.

    [1] A Subclass 482 visa is prescribed for s 338(2)(d): reg 4.02(1A).

18. In each instance, the requirement must be met at the time the decision to refuse to grant the visa is made. The alternatives are:

    (i)the non-citizen is identified in an approved nomination that has not ceased under the regulations;[2] or

    (ii)a review of a decision under s 140E not to approve the sponsor of the non-citizen is pending; or

    (iii)a review of a decision under s 140GB not to approve the nomination of the non-citizen is pending; or

    (iv)except if it is a criterion for the grant of the visa that the non-citizen is identified in an approved nomination that has not ceased, the non-citizen is sponsored by an approved sponsor.[3]

    [2] See reg 2.75 for cessation of nominations associated with Subclass 482 visas.

    [3] s 338(2)(d) as repealed and substituted by No 90, 2018, with effect for decisions made on or after 13 December 2018.

19. All primary subclass 482 visa applicants must be identified in an approved nomination.[4] Accordingly one of the first three alternative requirements (ss 338(2)(d)(i)–(iii)) must be met, at the time the decision to refuse to grant the visa is made. This means that, at that point in time, a nomination identifying the primary visa applicant must be approved, or a decision not to approve their sponsor be pending review before the Tribunal, or a decision to refuse the nomination be pending review before the Tribunal, for the decision to be a Part 5-reviewable decision.

    [4] See cl 482.212(1), which applies to all primary applicants regardless of the stream applied for.

20. The Tribunal finds that it does not have jurisdiction to review the decision to refuse the applicant a subclass 482 visa as he does not meet s.338(2)(d)(i), (ii) or (iii), and (iv) is not applicable to him. This is because there was no approved nomination of him on 26 May 2021 (as the Department had cancelled his employer’s approval of a standard business sponsor, also resulting in the cessation of its nomination of the first named applicant prior to that date). Nor was there any review pending with the Tribunal on 26 May 2021 of the decision to refuse to approve the nomination. There was arguably a pending review of a decision to refuse to approve the first named applicant’s employer as a standard business sponsor (in that KSM Barber Pty Ltd had sought review on 5 April 2021 of the decision to cancel its approval as a standard business sponsor); however, the cancellation decision was made pursuant to s.140M of the Act, whereas s.338(2)(d)(ii) refers to a pending review of a decision to refuse to approve a sponsor made pursuant to s.140E of the Act.

21. In any case, it is unnecessary to make a final finding on that issue as this review application was subsequently withdrawn by KSM Barber Pty Ltd on 4 August 2022.

22. As the delegate’s decision in respect of the applicant is not reviewable in these circumstances, it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in relation in this matter.

    decision

23. The Tribunal does not have jurisdiction in this matter.

    Alison Mercer
    Member