BRAHMBHATT (Migration)

[2022] AATA 1466

BRAHMBHATT (Migration) [2022] AATA 1466 (10 January 2022)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr NIKITESH BRAHMBHATT
Mrs HETA NIKITESH BRAHMBHATT
Master SHIVAY BRAHMBHATT

REPRESENTATIVE:  Mr RAJ KUMAR SAINI (MARN: 1678844)

CASE NUMBER:  1900188

HOME AFFAIRS REFERENCE(S):          BCC2018/4673617

MEMBER:Stephen Witts

DATE OF DECISION:  10 January 2022

DATE CORRIGENDUM

SIGNED:11 February 2022

PLACE OF DECISION:  Melbourne

1.AMENDMENT:  The following corrections are made to the decision:

The original decision record states 10 January 2020. It should state 10 January 2022

Stephen Witts
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr NIKITESH BRAHMBHATT

Mrs HETA NIKITESH BRAHMBHATT

Master SHIVAY BRAHMBHATT

REPRESENTATIVE:  Mr RAJ KUMAR SAINI (MARN: 1678844)

CASE NUMBER:  1900188

HOME AFFAIRS REFERENCE(S):          BCC2018/4673617

MEMBER:Stephen Witts

DATE:10 January 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 10 January 2022 at 3:56pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – short-term skill stream – café or restaurant manager – nominator ceased business – consent to decision without hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212(1)

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 2 January 2019 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 24 October 2018. 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 skill stream to work in the nominated occupation of café or restaurant manager ANZSCO code 141111.

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 the delegate was not satisfied that the applicant met the criteria for a short term skill stream visa.

4. The Tribunal notes that the applicant, Mr Brahmbhatt, and the nominator, Samanyu Enterprises Pty Ltd, were invited to appear before it on 20 January 2022 to provide oral evidence and present arguments.

5. The Tribunal further notes that on 10 January 2022 at 1 PM the applicant’s representative, Dr Raj Saini sent an email to the Tribunal regarding this matter and its linked nominator case stating that “I have instructions from the client to ask the Tribunal to take a decision with the submissions on hand and requests that hearing is not required”.

6. The Tribunal has considered this matter carefully and has decided based on the above to make a decision on the material before it without going to hearing.

7. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant meets the criteria for a short-term skill stream visa.

   Requirement for an approved nomination

9. 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.

10. The Tribunal notes the evidence provided that the nominator is no longer trading and has ceased as a business.

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

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

13. The Tribunal notes that as the primary applicant does not meet the requirements for the visa the secondary applicants also do not meet the requirements for the visa.

    DECISION

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

    Stephen Witts
    Member