Bandesha (Migration)

[2023] AATA 220

Bandesha (Migration) [2023] AATA 220 (31 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Veerpal

Kaur Bandesha

Mr Kulwant Singh Brar
Ms

Gurseerat Kaur Brar

Master Abir Singh Brar

REPRESENTATIVE:  Mr Jujhar Bajwa (MARN: 0742209)

CASE NUMBER:  2006023

HOME AFFAIRS REFERENCE(S):          BCC2019/6753475

MEMBER:Sean Baker

DATE:31 January 2023

PLACE OF DECISION:  Sydney

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

Statement made on 31 January 2023 at 4:41pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – short-term stream – hairdresser – genuine temporary entrant – long residence, study and work history – husband and children in Australian and husband working – vague answers about future plans – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.222(a)

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 5 March 2020 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 18 December 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 Short-term stream to work in the nominated occupation of Hairdresser (ANZSCO Code 391111).

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 482.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the evidence demonstrates that the applicant is a genuine applicant for entry and stay as a short term visa holder. The applicant provided a copy of the delegate’s decision to the Tribunal.

4. The first named applicant appeared before the Tribunal on 30 January 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicants were represented in relation to the review, but the representative indicated they were no longer acting for the applicants on 27 January 2023.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant intends genuinely to stay in Australia temporarily.

   Genuine short term applicant

8. Clause 482.222 requires as follows:

   The applicant is a genuine applicant for entry and stay as a short term visa holder because:

   (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)       the applicant’s circumstances; and

   (ii)      the applicant’s immigration history; and

   (iii)     any other relevant matter; and

   (b)the applicant intends to comply with any conditions to which the visa is subject, having regard to:

   (i)       the applicant’s record of compliance with any condition to which a visa previously held by the applicant (if any) was subject; and

   (ii)      the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)of any other relevant matter.

   Does the applicant genuinely intend to stay temporarily?

9. The applicant provided a genuine temporary entrant statement with her visa application. In this document she explained that she had come to Australia in October 2008 and had completed her studies and then applied for a 457 visa. She noted that unfortunately she had had to change employers twice and had now been nominated by a third employer who has a well established hairdressing salon. She noted that she was applying for the 482 visa and had no intention whatsoever of applying for another visa beyond this period. The studies she had completed in Australia were very much relevant to her current occupation, she was a well qualified and experienced hairdresser and she would provide a valuable contribution to her new Australian employer. She understood she would not be eligible for any other visas nor did she have any intention to apply for any further visa in Australia.

10. The delegate, in their decision record, noted that the applicant had declared she had completed the following courses of studies in Australia between 2008 to 2016:

    ·     Advanced Diploma of Marketing : Angad Australian Institute of Technology – 2016

    ·     Advanced Diploma of Business : St. Stephen Institute of Technology – 2015

    ·     Advanced Diploma of Management : Della International College – 2014

    ·     Diploma of Business : Aus Learning Training & Edu Centre – 2013

    ·     Diploma of Management : St. Stephen Institute of Technology – 2012

    ·     Diploma of Hairdressing : Baxter Institute – 2010

    ·     Cert IV in Hairdressing : Baxter Institute – 2010

    ·     Cert III in Hairdressing : Baxter Institute – 2010

11. As noted by the delegate, the applicant has spent a considerable period studying. The delegate acknowledged that the applicant had then spent four years working in the nominated occupation on the 457 visa. The delegate went on to observe that if this visa were granted the applicant would have been in Australia on a temporary visa or associated bridging visa for 13 years.

12. The delegate noted that the applicant had already spent some years in Australia acquiring qualifications and work experience and had previously worked as a hairdresser in her home country, India. The delegate was of the opinion that the applicant had not substantiated the benefits she would gain from two further years of working in Australia and found it difficult to reconcile her extensive stay onshore with her claims that she is a genuine temporary resident.

13. The delegate noted the applicant had not provided information about ties to their country that would indicate they have a significant incentive to return.

14. At hearing the applicant provided evidence consistent with the above. She confirmed she had arrived in Australia in October 2008 and had held a series of student visas and had then been granted the 457 visa in the nominated occupation of hairdresser. She was seeking this visa to work for a further two years as a hairdresser, she explained this was to develop her skills.

15. I explained to the applicant the legislative requirements of r.482.222. I explained that I shared the delegate’s concerns in relation to the period of her stay in Australia and in particular her claims about why she needed to remain in Australia for a further two years to develop her skills, given she had now been in Australia for 13 years and had worked for now over four years in the nominated occupation.

16. The applicant explained that she wanted more experience and that was why she wanted to stay for a further two years and become a perfect hairdresser. She said she had been working at a different hair salon since May 2022.

17. When pressed on why she needed another temporary visa to work in her nominated occupation she said that she wanted to practice the new technology so she could return to India and use those techniques. I asked her what new techniques or technology she was referring to and she said different types of cutting or colouring or straightening such as chemical straightening. I noted that she had had over four years of working and asked why she needed more time to learn these techniques. She said there were things she would not be able to learn and she wanted to learn those techniques here.

18. I asked the applicant about her family. She said that her husband and children were living with her here and her husband was working. She said that she had her father and mother and her in-laws in India, but that she had not travelled to visit them recently.

19. I asked her to tell me, if she was granted the visa, what her plan was. She said that she would work as a hairdresser in Australia. I asked what she would do after the visa ceased and she said whatever the conditions of the visa, she would follow those conditions.

20. I explained to the applicant that I had some concerns with her answers to my questions, including that she seemed unable to tell me with precision why she needed further time to develop her skills and experience in her chosen field, especially as she had been in Australia for many years and had worked in that field for a significant portion of that time. I noted that her family appeared to have strong ties to Australia with her husband working and her children here, and correspondingly weak to India where she said she had not visited her relatives recently and had not explained why this was the case. I noted in particular that she had not told me with clarity what her plan was once the visa ceased.

21. I asked her if she wished to respond to these concerns. She responded that the only thing she wanted say was that she wanted to practice more and then she could go back and work there.

22. When asked she said there was nothing further she wished to say.

23. As I explained to her at the hearing, for the applicant to meet cl 482.222(a), the Tribunal must be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to the applicant’s circumstances and immigration history, and any other relevant matter.

24. I have had regard to the applicant’s circumstances. She has now remained in Australia for over 13 years. In that time she has engaged in significant studies and has then worked in her chosen field for over four years. Her husband is working and their children are here, indicating ties to Australia. Conversely, her ties to India do not appear strong, given she has not recently returned to visit her relatives.

25. However, the main concern I have with her circumstances is that she was unable to explain in more than very general terms why she needed to work and remain in Australia for a further two years. Her answers to what skills she would acquire, and in particular what she would do once the visa ceased were undetailed and vague. I am concerned that she was not able to provide specifics about what she would do once the visa ceased given that this is a short term visa and she had earlier indicated in her GTE statement that she intended to return to India and work there. She did not provide any plan or details about this. Her answers did not indicate that the applicant had given much or any thought to these matters of why she needed the visa and what she would do afterwards. This is of concern because this is a temporary visa and because the applicant, in her GTE statement, explained that she had no intention of remaining but intended to return to India and work there.

26. As noted above, the applicant’s immigration history is that she has held a series of student visas and then the 457 temporary skilled visa. This has allowed her and her family to remain in Australia for 13 years. As did the delegate, I am concerned that her long period of residence in Australia does not match her claims that she is a genuine temporary resident.

27. I have considered whether there are any other relevant matters I should have regard to but find that there are not.

28. Weighing the information before me as set out above, in particular her inability to substantiate her claims that she needs to remain in Australia to develop her skills and experience in her field, and what she would do once the visa ceased, I am not satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to the information before me.

29. Therefore, the applicant does not meet cl 482.222(a).

30. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a short term visa holder as required by cl 482.222.

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

    decision

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

    Sean Baker
    Member