Clifford (Migration)

[2024] AATA 571

Clifford (Migration) [2024] AATA 571 (19 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jack

Clifford

Miss Daniella Blanchard

CASE NUMBER:  2107394

HOME AFFAIRS REFERENCE(S):         BCC2020/2290054

MEMBER:Alan McMurran

DATE:19 March 2024

PLACE OF DECISION:  Sydney

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

Statement made on 19 March 2024 at 3:15pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Fitter (General) – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 368, 379A
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 7 June 2021 for review of a decision made by a delegate of the Minister for Home Affairs on 19 May 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 visas on 12 September 2020.

3. 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.

4. In this case, the primary visa applicant, Mr Jack Clifford, a 28 year-old citizen of the United Kingdom (the applicant), is seeking the visa in the Medium-term stream to work in the nominated occupation of Fitter (General) ANZSCO 323211.

5. 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(1) of Schedule 2 to the Regulations because the nomination by the applicant’s sponsor was refused.

6. That decision was finalised by the Tribunal on review on 16 October 2023[1].

   Hearing invitation

   [1] Department file / BCC2020/2129819 //Tribunal case 2101864

7. On 19 February 2024, the applicants were invited to appear before the Tribunal on 19 March 2024 to give evidence and present arguments. As the applicant was offshore, having departed Australia on 12 July 2021, the invitation was to appear by telephone. The applicant did not respond to the hearing invitation.

8. The Tribunal is satisfied that the applicant was notified of the scheduled time for the hearing as per the invitation which was sent by email to the contact details he had provided and in accordance with s 379A(5) of the Act.

9. The Tribunal record also shows that the applicant was contacted on the given mobile number 5 days and 1 day before the appointed hearing.

10. There was no indication the reminder messages were not received as sent.

11. The Tribunal also attempted to contact the applicant on his provided contact number on the day of the hearing, at the appointed time, but without success.

12. The applicants did not appear.

13. Section 362B provides that if the applicant does not appear on the day or at the time scheduled for the appearance, the Tribunal may make a decision by written statement under s 368 without taking any further action to allow or enable the applicant to appear.

14. As the applicants did not appear in response to the invitation, and no explanation has been provided, or any extension or adjournment sought, the Tribunal has proceeded to finalise the review on the available information in accordance with s 362B(1A)(a) of the Act.

    Outcome

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in this case is whether the applicant can meet cl 482.212(1) of Schedule 2 to the Regulations.

17. The Tribunal has had regard to the information from the Tribunal file and the related Department file for the visa application. The applicant has provided a copy of the delegate’s decision on the visa made 19 May 2021.

    Requirement for an approved nomination

18. 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.

    The nomination

19. The applicant was nominated for the role of Fitter (General) by a sponsor, Major Engine Reconditioning Pty Ltd (“the nominator”), on 20 August 2020. The nomination was refused by notification given by the Department delegate on 17 February 2021.

20. The nominator sought review of that decision in the Tribunal, which was finalised as noted above on 16 October 2023, where the delegate’s decision was affirmed[2]. This Tribunal is not aware of any further action by the nominator or of any outstanding appeal by the nominator since the conclusion of that Tribunal review.

    [2] Tribunal case 2101864

21. On 7 June 2021, the applicant had lodged a written statement with the application for review which states:

    To whom it may concern,

    My partner and I have had our visa application declined, my understanding is that this is due to the lack of a current successful nomination.
    I have been advised by my employer that their nomination was declined on 17th February 2021 due to not providing sufficient evidence to prove that the labour market testing was satisfied in their original nomination.
    Subsequently my employer has also appealed, they are sure that they do in fact satisfy the LMT regulations. My employer has rectified their mistake made on their original application by supplying new evidence.
    I have made the decision to appeal the decision made on our visa because I am confident in my application and my employer has assured me that they do satisfy the regulations they need to meet.

22. Tribunal records show that the last contact from the applicant was an email received on 19 October 2021, stating that the applicant “and Daniella Blanchard would like to continue with our application for review”.

23. No submissions have been made since by the applicant to support this review, and no information or documents provided by him since the Tribunal decision was made to affirm the delegate’s decision not to approve the nomination.

24. It is clear to the Tribunal from his above statement that the applicant is aware that the nomination must be approved for his visa to proceed. He has acted on the basis that the nominator has “assured” him that the nominator can “satisfy the regulations”.

25. Unfortunately, that has proved not to be the case.

26. The Tribunal finds therefore that there is no approved nomination by the nominator in favour of the applicant.

27. As the requirement for an approved nomination is mandatory, and in respect of which there is no discretion, the application for the visas cannot succeed.

28. The Tribunal finds for these reasons that the requirements of cl 482.212(1) are not met.

    Secondary applicant

29. The secondary applicant, Miss Daniella Blanchard, is the de facto partner of the applicant.

30. The Tribunal finds that as the primary applicant is not the holder of a Subclass 482 (Temporary Skill Shortage) visa, the secondary applicant is not a member of the family unit of such a person and does not meet the requirement of regulation cl 482.312(1).

    Conclusion

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.

    Alan McMurran
    Member