Baird (Migration)

[2023] AATA 3017

Baird (Migration) [2023] AATA 3017 (11 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Stephen

Baird

Ms Ashley Marie Conachy

CASE NUMBER:  1932851

HOME AFFAIRS REFERENCE(S):          BCC2019/4712182

MEMBER:Peter Papadopoulos

DATE:11 September 2023

PLACE OF DECISION:  Sydney

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

Statement made on 11 September 2023 at 4:52pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – occupation of Diesel Motor Mechanic – no approved nomination – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 140, 359
Migration Regulations 1994, Schedule 2, cls 482.212, 482.312

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

2. The applicants applied for the visas on 19 September 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. In this case, the primary visa applicant (the applicant) is seeking the visa in the Medium-term stream to work in the nominated occupation of Diesel Motor Mechanic (ANZSCO 321212).

3. The delegate in this case refused to grant the visa on the basis that the primary visa applicant, Mr Baird, did not satisfy the requirements of cl 482.212 of Schedule 2 to the Regulations because his prospective sponsoring employer Dazzle Bazzle Pty Ltd did not have an approved nomination in place. It followed that the secondary visa applicant, Ms Conachy, did not meet cl 482.312 of Schedule 2 to the Regulations because she was not the member of the family unit of a person who was the holder of a Subclass 57t Temporary Work (Skilled) visa or a Subclass 482 visa.

4. Mr Baird appeared before the Tribunal on 11 September 2023 to give evidence and present arguments. Ms Conachy was invited to the hearing but did not attend.  It was clarified at hearing that Mr Baird did not want the Tribunal to take oral evidence from any witnesses.

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

   Hearing

6. At hearing, the Tribunal put to Mr Baird for his comment and response under s 359AA of the Act, information which may lead the Tribunal to affirm the decision under review. This information was particularised as follows:

   ·On 1 October 2019, the nomination made by Dazzle Bazzle in relation to the primary visa applicant was refused by the Department.

   ·Dazzle Bazzle Pty Ltd applied for review of the nomination refusal, however, on 9 February 2023, the Tribunal affirmed the Department’s decision to refuse to approve the nomination. 

   The Tribunal explained that this information was relevant to the review as it indicated that Mr Baird did not have an approved nomination made by Dazzle Bazzle Pty Ltd. The Tribunal further explained that if it relies on this information in making its decision, it may find that he does not satisfy cl 482.212 of Schedule 2 of the Regulations and, accordingly, the Tribunal would affirm the delegate’s decision to refuse each applicant a Subclass 482 visa.

7. By way of response, Mr Baird indicated that he did not know that the Tribunal had affirmed the delegate’s decision in relation to the nomination made by Dazzle Bazzle Pty Ltd but acknowledged and understood that there was nothing further he could say in relation to that issue. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the position to which the application relates is subject of an approved nomination.

   Requirement for an approved nomination

10. 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.

11. Based upon its consideration of the available material, including Mr Baird’s response to the adverse information put to him at hearing, it remains that the nomination identified in the visa application has not been approved under s 140GB of the Act.  As the relevant nomination has not been approved, it follows that that the position to which the application relates is not the subject of an approved nomination.

12. For these reasons, the requirements of cl 482.212(1) are not met.

13. As Mr Baird does not satisfy cl 482.212(1) for the grant of the Subclass 482 visa, it follows that Ms Conachy does not meet cl 482.312 for the grant of a Subclass 482 visa.

14. As each applicant has not met an essential requirement for the visa, the decision under review must be affirmed.

    DECISION

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

    Peter Papadopoulos
    Member