Calilap (Migration)

[2024] AATA 528

Calilap (Migration) [2024] AATA 528 (12 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ismael

Calilap

Ms Norma Calilap

REPRESENTATIVE:  Mrs Wenjing Cheng (MARN: 1383293)

CASE NUMBER:  2112255

HOME AFFAIRS REFERENCE(S):          BCC2020/895908

MEMBER:Susan Hoffman

DATE:12 March 2024

PLACE OF DECISION:  Perth

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

Statement made on 12 March 2024 at 8:39am

CATCHWORDS

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

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 482.212

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 August 2021 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 visa on 9 January 2021. 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 applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of stonemason (ANZSCO 331112).

3. The delegate in this case refused to grant the visas on the basis that the primary applicant did not satisfy the requirements of cl 482.212(1) of Schedule 2 to the Regulations because the nomination application lodged by his employer, Bernini Stone and Tiles Pty Ltd (Bernini), had not been approved.

4. Mr William Warren is the managing director of Bernini. He appeared before the Tribunal on 7 March 2024 to give evidence and present arguments in relation to the nomination application. The case number for that review is 2107838. Mr Calilap was present for that hearing. His hearing had been scheduled to start a little later. Mr Calilap and Mr Warren agreed that the reviews of the decisions to refuse the nomination application and to refuse the Subclass 482 visa applications could be heard during the same hearing: that is, a combined hearing was held.

5. A separate decision statement has been written for case number 2107838.

6. The applicant in this matter, Mr Calilap, was represented in relation to the review. The representative did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether there is an approved nomination in relation to the nominated position of stonemason (ANZSCO 331112).

   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 has reviewed the delegate’s decision to refuse the nomination application and has affirmed that decision. The relevant decision statement was made at 8:15 am on 12 March 2024.

11. That means the nomination identified in the visa application is not approved.

12. At the joint hearing attended by Mr Calilap, the Tribunal heard evidence about the nomination application and informed those present (Mr Calilap and Mr Warren) that it was unable to approve the nomination application for reasons explained at the hearing.

13. The Tribunal is satisfied that there is not an approved nomination in place that is linked to the applicant’s Subclass 482 visa application.

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

15. As one of the essential requirements for the visa is not met, the decision under review must be affirmed in relation Mr Calilap.

16. With regards to the secondary applicant, Ms Norma Calilap, she applied for Subclass 482 visa on the basis of being a member of the same family unit as an applicant who meets the primary criteria for this visa.

17. There was no evidence before the Tribunal that Ms Calilap could meet the primary criteria in her own right. As the Tribunal has found that the primary applicant does not meet the primary criteria, the visa application made by the secondary applicant cannot be granted.

    DECISION

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

    Susan Hoffman
    Member