Choi (Migration)

[2023] AATA 75

Choi (Migration) [2023] AATA 75 (5 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Haram Choi

REPRESENTATIVE:  Ms Jungmin Lee (MARN: 1279501)

CASE NUMBER:  1916689

HOME AFFAIRS REFERENCE(S):  BCC2019/2423461

MEMBER:Ian Berry

DATE:5 January 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 05 January 2023 at 9:24am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – secondary applicant newborn child of primary applicant – refusal of related position nomination affirmed on review – no response to tribunal’s invitation to comment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994 (Cth), Schedule 2, cls 482.212(1), 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 5 June 2019 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 7 May 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.

3. In this case, the applicant is seeking the visa, as a secondary applicant because she is the daughter of the primary applicant Ms Heejin Kim (the mother) who has been sponsored for a position in the Short-term stream to work in the nominated occupation of café or restaurant manager.  The mother’s sponsor is Home Plus Stanthorpe Pty Ltd.

4. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.312 of Schedule 2 to the Regulations because the applicant neither was a primary applicant where she has been identified in a nomination application that has been approved nor a secondary applicant where the primary applicant has been identified in a nomination application that to also has been approved.

   Background

5. Home Plus Stanthorpe Pty Ltd[1] (the sponsor) nominated the applicant’s mother Ms Heejin Kim for the position of Café or restaurant manager.  The nomination was made on 3 May 2019.  It included the applicant’s mother, father and sister.  The applicant was born on only days before the nomination application.

   [1] This Corporation is the sponsor and nominator where the applicant's mother is the primary applicant who was identified as a person to undertake the position of Café or restaurant manager. It’s case number 1912284, was decided by another Tribunal Member who affirmed the delegate’s decision refusing the nomination.

6. On 7 May 2019, the applicant made an application for a Temporary Skill Shortage (Subsequent entrant) visa.  This application aligned this applicant with her family in the nomination process.

   Section 359A invitational  letter

7. The Tribunal invited the applicant to comment on or respond to information that the sponsor’s nomination in which her mother was identified as the nominee, was refused.  The result of which, the Tribunal advised that this information may be a reason or part of a reason for affirming the decision under review.  The applicant was invited to provide comments or respond which should be received by 23 December 2022.  The invitational letter advised that should the applicant not respond by the time provided, or otherwise apply for an extension with the time provided, the applicant would lose any entitlement to a hearing and the Tribunal would proceed to decide on the evidence before it. The applicant did not respond. 

8. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant is the subject of a nomination which has been approved.

    Requirement for an approved nomination

11. 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.

12. The evidence before the Tribunal is the applicant does not have, and is not the subject of an approved nomination, whether as a primary or secondary applicant.  Result is that the applicant cannot comply with clause 482.212(1).

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

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

    decision

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

    Ian Berry
    Member